The sources of military jurisdiction include the Constitution and
international law. International law includes the law of war.
Military jurisdiction is exercised by:
which regulates its military establishment. (Military law).
territory or a portion of its territory through its military forces as necessity
may require. (Martial law).
A belligerent occupying enemy territory. (Military government).
A government with respect to offenses against the law of war.
The agencies through which military jurisdiction is exercised include:
in the case of general courts-martial, of persons who by the law of war are
subject to trial by military tribunals. See Parts II, III,
and IV of this Manual for rules governing courts-martial.
their respective jurisdictions. Subject to any applicable rule of international
law or to any regulations prescribed by the President or by other competent
authority, military commissions and provost courts shall be guided by the
appropriate principles of law and rules of procedures and evidence prescribed
for courts-martial.
such court by competent authority. See Article 135. The
Secretary concerned may prescribe regulations governing courts of inquiry.
Military law consists of the statutes governing the military establishment
and regulations issued thereunder, the constitutional powers of the President
and regulations issued thereunder, and the inherent authority of military
commanders. Military law includes jurisdiction exercised by courts-martial
and the jurisdiction exercised by commanders with respect to nonjudicial
punishment. The purpose of military law is to promote justice, to assist in
maintaining good order and discipline in the armed forces, to promote efficiency
and effectiveness in the military establishment, and thereby to strengthen
the national security of the United States.
The Manual for Courts-Martial shall consist of this Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedures (Part I-V). This Manual shall be applied consistent with the purpose of military law.
The Department of Defense, in conjunction with the Department of Homeland Security, publishes supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Preface, a Table of Contents, Discussions, Appendices, and an Index. These supplementary materials do not have the force of law and may be used as secondary authority.
The Manual shall be identified by the year in which it was printed; for example, "Manual for Courts-Martial, United States (20xx edition)." Any amendments to the Manual made by Executive Order shall be identified as "20xx" Amendments to the Manual for Courts-Martial, United States, "20xx" being the year the Executive Order was signed.
The Department of Defense Joint Service Committee (JSC) on Military Justice reviews the Manual for Courts-Martial and proposes amendments to the Department of Defense (DoD) for consideration by the President on an annual basis. In conducting its annual review, the JSC is guided by DoD Directive 5500.17, "Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice." DoD Directive 5500.17 includes provisions allowing public participation in the annual review process.
The Department of Defense, in conjunction with the Department of Homeland Security, has published supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules. Cf., e.g., 5 U.S.C. § 551(4). The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity (including any authority of the Government of the United States whether or not included in the definition of "agency" in 5 U.S.C. § 551(1)). Failure to comply with matter set forth in the supplementary materials does not, of itself, constitute error, although these materials may refer to requirements in the rules set forth in the Executive Order or established by other legal authorities (for example, binding judicial precedents applicable to courts-martial) that are based on sources of authority independent of the supplementary materials. See Appendix 21 in this Manual.
The 1995 amendment to paragraph 4 of the Preamble eliminated the practice of identifying the Manual for Courts-Martial, United States, by a particular year. Historically the Manual had been published in its entirety sporadically (e.g., 1917, 1921, 1928, 1949, 1951, 1969, and 1984) with amendments to it published piecemeal. It was therefore logical to identify the Manual by the calendar year of publication, with periodic amendments identified as "Changes" to the Manual. Beginning in 1995, however, a new edition of the Manual was published in its entirety and a new naming convention was adopted. See Exec. Order No. 12960 of May 12, 1995. Beginning in 1995, the Manual was to be referred to as "Manual for Courts-Martial, United States (19xx edition)." Amendments made to the Manual can be researched in the relevant Executive Order as referenced in Appendix 25. Although the Executive Orders were removed from Appendix 25 of the Manual in 2012 to reduce printing requirements, they can be accessed online. See Appendix 25. The new changes to the Manual will also be annotated in the Preface.
Executive Order 13262 of April 11, 2002, mandated that, "The Manual shall be identified as 'Manual for Courts-Martial, United States (2002 edition).'" Therefore, the preambles in the 2005 and 2008 Manuals were improperly amended. In 2013, the preamble was amended to identify new Manuals based on their publication date.
These rules govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities.
These rules may be known and cited as the Rules for Courts-Martial
(R.C.M.).
These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial.
These rules shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
The following definitions and rules of construction apply throughout this Manual, unless otherwise expressly provided.
"Article" refers to articles of the Uniform Code of Military Justice unless the context indicates otherwise.
"Capital case" means a general court-martial to which a capital offense has been referred with an instruction that the case be treated as capital, and, in the case of a rehearing or new or other trial, for which offense death remains an authorized punishment under R.C.M. 810(d).
"Capital offense" means an offense for which death is an authorized punishment under the code and Part IV of this Manual or under the law of war.
"Code" refers to the Uniform Code of Military Justice, unless the context indicates otherwise.
The Uniform Code of Military Justice is set forth at Appendix 2.
"Commander" means a commissioned officer in command or an officer in charge except in Part V or unless the context indicates otherwise.
"Convening authority" includes a commissioned officer in command for the time being and successors in command.
See R.C.M. 504 concerning who may convene courts-martial.
"Copy" means an accurate reproduction, however made. Whenever necessary and feasible, a copy may be made by handwriting.
"Court-martial" includes, depending on the context:
The military judge and members of a general or special court-martial;
The military judge when a session of a general or special court-martial is conducted without members under Article 39(a);
The military judge when a request for trial by military judge alone has been approved under R.C.M. 903;
The members of a special court-martial when a military judge has not been detailed; or
The summary court-martial officer.
"Days." When a period of time is expressed in a number of days, the period shall be in calendar days, unless otherwise specified. Unless otherwise specified, the date on which the period begins shall not count, but the date on which the period ends shall count as one day.
"Detail" means to order a person to perform a specific temporary duty, unless the context indicates otherwise.
"Explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other compound, mixture, or device which is an explosive within the meaning of 18 U.S.C. § 232(5) or 844(j).
"Firearm" means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.
"Joint" in connection with military organization connotes activities, operations, organizations, and the like in which elements of more than one military service of the same nation participate.
"Members." The members of a court-martial are the voting members detailed by the convening authority.
"Military judge" means the presiding officer of a general or special court-martial detailed in accordance with Article 26. Except as otherwise expressly provided, in the context of a summary court-martial "military judge" includes the summary court-martial officer or in the context of a special court-martial without a military judge, the president. Unless otherwise indicated in the context, "the military judge" means the military judge detailed to the court-martial to which charges in a case have been referred for trial.
"Party." Party, in the context of parties to a court-martial, means:
The accused and any defense or associate or assistant defense counsel and agents of the defense counsel when acting on behalf of the accused with respect to the court-martial in question; and
Any trial or assistant trial counsel representing the United States, and agents of the trial counsel when acting on behalf of the trial counsel with respect to the court-martial in question.
"Staff judge advocate" means a judge advocate so designated in Army, Air Force, or Marine Corps, and means the principal legal advisor of a command in the Navy and Coast Guard who is a judge advocate.
"sua sponte" means that the person involved acts on that person's initiative, without the need for a request, motion, or application.
"War, time of." For purpose of R.C.M. 1004(c)(6) and of implementing the applicable paragraphs of Parts IV and V of this Manual only, "time of war" means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a "time of war" exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual.
"Writing" includes printing and typewriting and reproductions of visual symbols by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
The definition of "writing" includes letters, words, or numbers set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or any other form of data compilation. This section makes it clear that computers and other modern reproduction systems are included in this definition, and consistent with the definition of "writing" in Military Rule of Evidence 1001. The definition is comprehensive, covering all forms of writing or recording of words or word-substitutes.
1 U.S.C. §§ 1 through 5, 10 U.S.C. § 101, and 10 U.S.C. § 801 (Article 1) are set forth below. 1 U.S.C. § 1. Words denoting number, gender, and so forth. In determining the meaning of any Act of Congress, unless the context indicates otherwise- words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular; words importing the masculine gender include the feminine as well; words used in the present tense include the future as well as the present; the words "insane" and "insane person" and "lunatic" shall include every idiot, lunatic, insane person, and person non compos mentis; the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; "officer" includes any person authorized by law to perform the duties of the office; "signature" or "subscription" includes a mark when the person making the same intended it as such; "oath" includes affirmation, and "sworn" includes affirmed; § 2. "County" as including "parish," and so forth. The word "county" includes a parish, or any other equivalent subdivision of a State or Territory of the United States. § 3. "Vessel" as including all means of water transportation. The word "vessel" includes every description of watercraft or other artificial contrivance used or capable of being used, as a means of transportation on water. § 4. "Vehicle" as including all means of land transportation. The word "vehicle" includes every description of carriage or other artificial contrivance used or capable of being used, as a means of transportation on land. § 5. "Company" or "association" as including successors and assigns. The word "company" or "association", when used in reference to a corporation, shall be deemed to embrace the words "successors and assigns of such company or association", in like manner as if these last-named words, or words of similar import, were expressed.
In addition to the definitions in sections 1-5 of title 1, the following definitions apply in this title:
"United States", in a geographic sense, means the States and the District of Columbia.
Except as provided in section 101(1) of title 32 for laws relating to the militia, the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States, "Territory" means any Territory organized after this title is enacted, so long as it remains a Territory.
"Possessions" includes the Virgin Islands, the Canal Zone, Guam, American Samoa, and the Guano islands, so long as they remain possessions, but does not include any Territory or Commonwealth.
"Armed forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
"Department", when used with respect to a military department, means the executive part of the department and all field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision of the Secretary of the department. When used with respect to the Department of Defense, it means the executive part of the department, including the executive parts of the military departments, and all field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision of the Secretary of Defense, including those of the military departments.
"Executive part of the department" means the executive part of the Department of the Army, Department of the Navy, or Department of the Air Force, as the case may be, at the seat of government.
"Military departments" means the Department of the Army, the Department of the Navy, and the Department of the Air Force.
"Secretary concerned" means-
the Secretary of the Army, with respect to matters concerning the Army;
the Secretary of the Navy, with respect to matters concerning the Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy;
the Secretary of the Air Force, with respect to matters concerning the Air Force; and
the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Navy.
"National Guard" means the Army National Guard and the Air National Guard.
"Army National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the Canal Zone, and the District of Columbia, active and inactive, that-
is a land force;
is trained, and has its officers appointed, under the sixteenth clause of section 8, article 1, of the Constitution;
is organized, armed, and equipped wholly or partly at Federal expense; and
is federally recognized.
"Army National Guard of the United States" means the reserve component of the Army all of whose members are members of the Army National Guard.
"Air National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that-
is an air force;
is trained, and has its officers appointed, under the sixteenth clause of section 8, article 1, of the Constitution;
is organized, armed, and equipped wholly or partly at Federal expense; and
is federally recognized.
"Air National Guard of the United States" means the reserve component of the Air Force all of whose members are members of the Air National Guard.
"Officer" means commissioned or warrant officer.
"Commissioned officer" includes a commissioned warrant officer.
"Warrant officer" means a person who holds a commission or warrant in a warrant officer grade.
"Enlisted member" means a person in an enlisted grade.
"Grade" means a step or degree, in a graduated scale of office or military rank that is established and designated as a grade by law or regulation.
"Rank" means the order of precedence among members of the armed forces. [Definitions established in clauses (18) and (19) post-date the enactment of the code and, as a result, differ from usage of the same terms in the code and current and prior Manual provisions. See Articles 1(5) and 25(d)(1); R.C.M. 1003(c)(2); paragraphs 13c(1), 83c(2), and 84c, Part IV, MCM, 1984. MCM 1951 referred to officer personnel by 'rank' and enlisted personnel by "grade." See paragraphs 4c, 16b, 126d, 126i, and 168, MCM, 1951. "Rank" as defined in 10 U.S.C. § 101, clause (19) above, refers to the MCM, 1951 provision regarding "lineal precedence, numbers, and seniority." Paragraph 126i, MCM, 1951; see also paragraph 126i, MCM, 1969 (Rev). Except where lineal position or seniority is clearly intended, rank, as commonly and traditionally used, and grade refer to the current definition of "grade."]
"Rating" means the name (such as "boatswain's mate") prescribed for members of an armed force in an occupational field. "Rate" means the name (such as "chief boatswain's mate") prescribed for members in the same rating or other category who are in the same grade (such as chief petty officer or seaman apprentice). [Note: The definitions in clauses (3), (15), (18)-(21), (23)-(30), and (31)-(33) reflect the adoption of terminology which, though undefined in the source statutes restated in this title, represents the closest practicable approximation of the ways in which the terms defined have been most commonly used. A choice has been made where established uses conflict.]
"Authorized strength" means the largest number of members authorized to be in an armed force, a component, a branch, a grade, or any other category of the armed forces.
"Active duty" means full-time duty in the active military service of the United States. It includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.
"Active duty for a period of more than 30 days" means active duty under a call or order that does not specify a period of 30 days or less.
"Active service" means service on active duty.
"Active status" means the status of a reserve commissioned officer, other than a commissioned warrant officer, who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.
"Supplies" includes material, equipment, and stores of all kinds.
"Pay" includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but does not include allowances.
"Shall" is used in an imperative sense.
"May" is used in a permissive sense. The words "no person may . . ." mean that no person is required, authorized, or permitted to do the act prescribed.
"Includes" means "includes but is not limited to."
"Inactive-duty training" means-
duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law; and
special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned. It includes those duties when performed by Reserves in their status as members of the National Guard.
"Spouse" means husband or wife, as the case may be.
"Regular", with respect to an enlistment, appointment, grade, or office, means enlistment, appointment, grade, or office in a regular component of an armed force.
"Reserve", with respect to an enlistment, appointment, grade, or office, means enlistment, appointment, grade, or office held as a Reserve of an armed force.
"Original", with respect to the appointment of a member of the armed forces in a regular or reserve component, refers to his most recent appointment in the component that is neither a promotion nor a demotion.
Repealed.
"Active-duty list" means a single list for the Army, Navy, Air Force or Marine Corps (required to be maintained under section 620 of this title) which contains the names of all officers of that armed force, other than officers described in section 641 of this title, who are serving on active duty.
"Medical officer" means an officer of the Medical Corps of the Army, an officer of the Medical Corps of the Navy, or an officer in the Air Force designated as a medical officer.
"Dental officer" means an officer of the Dental Corps of the Army, an officer of the Dental Corps of the Navy, or an officer of the Air Force designated as a dental officer.
"General officer" means an officer of the Army, Air Force, or Marine Corps serving in or having the grade of general, lieutenant general, major general, or brigadier general.
"Flag officer" means an officer of the Navy or Coast Guard serving in or having the grade of admiral, vice admiral, rear admiral, or commodore.
In this chapter:
"Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security. [NOTE: The Secretary of Homeland Security has designated the Chief Counsel, U.S. Coast Guard, to serve as the Judge Advocate General of the Coast Guard.].
The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
"Commanding officer" includes only commissioned officers.
"Officer in charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
"Superior commissioned officer" means a commissioned officer superior in rank or command.
"Cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
"Midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
"Military" refers to any or all of the armed forces.
"Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
"Military judge" means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26). [See also R.C.M. 103(15).]
REPEALED [Note: The definition for "law specialist" was repealed by Public Law 109-241, title II, § 218(a)(1), July 11, 2006, 120 Stat. 256. The text was stricken but subsequent paragraphs were not renumbered.]
"Legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.
"Judge Advocate" means-
an officer of the Judge Advocate General's Corps of the Army or Navy;
an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or
a commissioned officer of the Coast Guard designated for special duty (law).
"Classified information" (A) means any information or material that has been determined by an official of the United States pursuant to law, an Executive Order, or regulation to require protection against unauthorized disclosure for reasons of national security, and (B) any restricted data, as defined in section 2014(y) of title 42, United States Code.
"National security" means the national defense and foreign relations of the United States.
No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority's judicial acts.
Subsections (a)(1) and (2) of the rule do not prohibit general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing personnel of a command in the substantive and procedural aspects of courts-martial.
Subsections (a)(1) and (2) of this rule do not prohibit statements and instructions given in open session by the military judge or counsel.
Subsections (a)(1) and (2) of this rule do not prohibit action by the Judge Advocate General concerned under R.C.M. 109.
Subsection (a)(1) and (2) of this rule do not prohibit appropriate action against a person for an offense committed while detailed as a military judge, counsel, or member of a court-martial, or while serving as individual counsel.
In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces should be retained on active duty, no person subject to the code may:
Consider or evaluate the performance of duty of any such person as a member of a court-martial; or
Give a less favorable rating or evaluation of any defense counsel because of the zeal with which such counsel represented any accused.
Unless the general court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of the convening authority's staff may prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge detailed to a general court-martial, which relates to the performance of duty as a military judge.
The convening authority may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial which relates to the performance of duty as a military judge. When the military judge is normally rated or the military judge's report is reviewed by the convening authority, the manner in which such military judge will be rated or evaluated upon the performance of duty as a military judge may be as prescribed in regulations of the Secretary concerned which shall ensure the absence of any command influence in the rating or evaluation of the military judge's judicial performance.
See paragraph 22 of Part IV concerning prosecuting violations of Article 37 under Article 98.
If a commissioned officer of any armed force is dismissed by order of the President under 10 U.S.C. § 1161(a)(3), that officer may apply for trial by general court-martial within a reasonable time.
See Article 4 for the procedures to be followed. See also Article 75(c).
The Judge Advocate General concerned and persons designated by the Judge Advocate General may make rules of court not inconsistent with these rules for the conduct of court-martial proceedings. Such rules shall be disseminated in accordance with procedures prescribed by the Judge Advocate General concerned or a person to whom this authority has been delegated. Noncompliance with such procedures shall not affect the validity of any rule of court with respect to a party who has received actual and timely notice of the rule or who has not been prejudiced under Article 59 by the absence of such notice. Copies of all rules of court issued under this rule shall be forwarded to the Judge Advocate General concerned.
Each Judge Advocate General is responsible for the professional supervision and discipline of military trial and appellate military judges, judge advocates, and other lawyers who practice in proceedings governed by the code and this Manual. To discharge this responsibility each Judge Advocate General may prescribe rules of professional conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated pursuant to this rule may include sanctions for violations of such rules. Sanctions may include but are not limited to indefinite suspension from practice in courts-martial and in the Courts of Criminal Appeals. Such suspensions may only be imposed by the Judge Advocate General of the armed service of such courts. Prior to imposing any discipline under this rule, the subject of the proposed action must be provided notice and an opportunity to be heard. The Judge Advocate General concerned may upon good cause shown modify or revoke suspension. Procedures to investigate complaints against military trial judges and appellate military judges are contained in subsection (c) of this rule.
When a Judge Advocate General suspends a person from practice or the Court of Appeals for the Armed Forces disbars a person, any Judge Advocate General may suspend that person from practice upon written notice and opportunity to be heard in writing.
These rules and procedures promulgated pursuant to Article 6a are established to investigate and dispose of charges, allegations, or information pertaining to the fitness of a military trial judge or appellate military judge to perform the duties of the judge's office.
Allegations of judicial misconduct or unfitness shall be investigated pursuant to the procedures of this rule and appropriate action shall be taken. Judicial misconduct includes any act or omission that may serve to demonstrate unfitness for further duty as a judge, including, but not limited to violations of applicable ethical standards.
The term "unfitness" should be construed broadly, including, for example, matters relating to the incompetence, impartiality, and misconduct of the judge. Erroneous decisions of a judge are not subject to investigation under this rule. Challenges to these decisions are more appropriately left to the appellate process.
Complaints concerning a military trial judge or appellate military judge will be forwarded to the Judge Advocate General of the service concerned or to a person designated by the Judge Advocate General concerned to receive such complaints.
Complaints need not be made in any specific form, but if possible complaints should be made under oath. Complaints may be made by judges, lawyers, a party, court personnel, members of the general public or members of the military community. Reports in the news media relating to the conduct of a judge may also form the basis of a complaint. An individual designated to receive complaints under this subsection should have judicial experience. The chief trial judge of a service may be designated to receive complaints against military trial judges.
Upon receipt, a complaint will be screened by the Judge Advocate General concerned or by the individual designated in subsection (c)(3) of this rule to receive complaints. An initial inquiry is necessary if the complaint, taken as true, would constitute judicial misconduct or unfitness for further service as a judge. Prior to the commencement of an initial inquiry, the Judge Advocate General concerned shall be notified that a complaint has been filed and that an initial inquiry will be conducted. The Judge Advocate General concerned may temporarily suspend the subject of a complaint from performing judicial duties pending the outcome of any inquiry or investigation conducted pursuant to this rule. Such inquiries or investigations shall be conducted with reasonable promptness.
Complaints under this subsection will be treated with confidentiality. Confidentiality protects the subject judge and the judiciary when a complaint is not substantiated. Confidentiality also encourages the reporting of allegations of judicial misconduct or unfitness and permits complaints to be screened with the full cooperation of others. Complaints containing allegations of criminality should be referred to the appropriate criminal investigative agency in accordance with Appendix 3 of this Manual.
An initial inquiry is necessary to determine if the complaint is substantiated. A complaint is substantiated upon finding that it is more likely than not that the subject judge has engaged in judicial misconduct or is otherwise unfit for further service as a judge.
The Judge Advocate General concerned, or the person designated to receive complaints under subsection (c)(3) of this rule will conduct or order an initial inquiry. The individual designated to conduct the inquiry should, if practicable, be senior to the subject of the complaint. If the subject of the complaint is a military trial judge, the individual designated to conduct the initial inquiry should, if practicable, be a military trial judge or an individual with experience as a military trial judge. If the subject of the complaint is an appellate military judge, the individual designated to conduct the inquiry should, if practicable, have experience as an appellate military judge.
To avoid the type of conflict prohibited in Article 66(g), the Judge Advocate General's designee should not ordinarily be a member of the same Court of Criminal Appeals as the subject of the complaint. If practicable, a former appellate military judge should be designated.
During the initial inquiry, the subject of the complaint will, at a minimum, be given notice and an opportunity to be heard.
If the complaint is not substantiated pursuant to subsection (c)(5)(A) of this rule, the complaint shall be dismissed as unfounded. If the complaint is substantiated, minor professional disciplinary action may be taken or the complaint may be forwarded, with findings and recommendations, to the Judge Advocate General concerned. Minor professional disciplinary action is defined as counseling or the issuance of an oral or written admonition or reprimand. The Judge Advocate General concerned will be notified prior to taking minor professional disciplinary action or dismissing a complaint as unfounded.
The Judge Advocates General are responsible for the professional supervision and discipline of military trial and appellate military judges under their jurisdiction. Upon receipt of findings and recommendations required by subsection (c)(5) of this rule the Judge Advocate General concerned will take appropriate action.
The Judge Advocate General concerned may dismiss the complaint, order an additional inquiry, appoint an ethics commission to consider the complaint, refer the matter to another appropriate investigative agency or take appropriate professional disciplinary action pursuant to the rules of professional conduct prescribed by the Judge Advocate General under subsection (a) of this rule. Any decision of the Judge Advocate General, under this rule, is final and is not subject to appeal.
The discretionary reassignment of military trial judges or appellate military judges to meet the needs of the service is not professional disciplinary action.
Prior to taking professional disciplinary action, other than minor disciplinary action as defined in subsection (c)(5) of this rule, the Judge Advocate General concerned shall find, in writing, that the subject of the complaint engaged in judicial misconduct or is otherwise unfit for continued service as a military judge, and that such misconduct or unfitness is established by clear and convincing evidence.
Prior to taking final action on the complaint, the Judge Advocate General concerned will ensure that the subject of the complaint is, at a minimum, given notice and an opportunity to be heard.
If appointed pursuant to subsection (c)(6)(B) of this rule, an ethics commission shall consist of at least three members. If the subject of the complaint is a military trial judge, the commission should include one or more military trial judges or individuals with experience as a military trial judge. If the subject of the complaint is an appellate military judge, the commission should include one or more individuals with experience as an appellate military judge. Members of the commission should, if practicable, be senior to the subject of the complaint.
The commission will perform those duties assigned by the Judge Advocate General concerned. Normally, the commission will provide an opinion as to whether the subject's acts or omissions constitute judicial misconduct or unfitness. If the commission determines that the affected judge engaged in judicial misconduct or is unfit for continued judicial service, the commission may be required to recommend an appropriate disposition to The Judge Advocate General concerned.
The Judge Advocate General concerned may appoint an ad hoc or a standing commission.
The Secretary of Defense or the Secretary of the service concerned may establish additional procedures consistent with this rule and Article 6a.
"Jurisdiction" means the power to hear a case and to render a legally competent decision. A court-martial has no power to adjudge civil remedies. For example, a court-martial may not adjudge the payment of damages, collect private debts, order the return of property, or order a criminal forfeiture of seized property. A summary court-martial appointed under 10 U.S.C. §§ 4712 or 9712 to dispose of the effects of a deceased person is not affected by these Rules or this Manual.
Except insofar as required by the Constitution, the Code, or the Manual, such as persons listed under Article 2(a)(10), jurisdiction of courts-martial does not depend on where the offense was committed.
In addition to the power to try persons for offenses under the code, general courts-martial have power to try certain persons for violations of the law of war and for crimes or offenses against the law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or part by the military authority of the occupying power. See R.C.M. 201(f)(1)(B). In cases where a person is tried by general court-martial for offenses against the law of an occupied territory, the court-martial normally sits in the country where the offense is committed, and must do so under certain circumstances. See Articles 4, 64, and 66, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, arts. 4, 64, and 66, 6 U.S.T. 3516, 3559-60 T.I.A.S. No. 3365.
A court-martial always has jurisdiction to determine whether it has jurisdiction. Otherwise for a court-martial to have jurisdiction:
See R.C.M. 504; 1302.
See R.C.M. 501-504; 1301.
See R.C.M. 601.
See R.C.M. 202.
See R.C.M. 203. The judgment of a court-martial without jurisdiction is void and is entitled to no legal effect. See R.C.M. 907(b)(2)(C)(iv). But see R.C.M. 810(d) concerning the effect of certain decisions by courts-martial without jurisdiction.
A judge detailed to a court-martial may punish for contempt any person who uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial; disturbs the proceedings of the court-martial by any riot or disorder; or willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial. The punishment may not exceed confinement for 30 days or a fine of $1,000, or both.
See R.C.M. 809 for procedures and standards for contempt proceedings.
Courts-martial have exclusive jurisdiction of purely military offenses.
An act or omission which violates both the code and local criminal law, foreign or domestic, may be tried by a court-martial, or by a proper civilian tribunal, foreign or domestic, or, subject to R.C.M. 907(b)(2)(C) and regulations of the Secretary concerned, by both.
Where an act or omission is subject to trial by court-martial and by one or more civil tribunals, foreign or domestic, the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, states, and agencies concerned, and is not a right of the suspect or accused.
In the case of an act or omission which violates the code and a criminal law of a State, the United States, or both, the determination which agency shall exercise jurisdiction should normally be made through consultation or prior agreement between appropriate military officials (ordinarily the staff judge advocate) and appropriate civilian authorities (United States Attorney, or equivalent). See also Memorandum of Understanding Between Departments of Justice and Defense Relating to the Investigation and Prosecution of Crimes Over Which the Two Departments Have Concurrent Jurisdiction at Appendix 3. Under the Constitution, a person may not be tried for the same misconduct by both a court-martial and another federal court. _ See_ R.C.M. 907(b)(2)(C). Although it is constitutionally permissible to try a person by court-martial and by a State court for the same act, as a matter of policy a person who is pending trial or has been tried by a State court should not ordinarily be tried by court-martial for the same act. Overseas, international agreements might preclude trial by one state of a person acquitted or finally convicted of a given act by the other state. Under international law, a friendly foreign nation has jurisdiction to punish offenses committed within its borders by members of a visiting force, unless expressly or impliedly consents to relinquish its jurisdiction to the visiting sovereign. The procedures and standards for determining which nation will exercise jurisdiction are normally established by treaty. See, for example, NATO Status of Forces Agreement, June 19, 1951, 4 U.S.T. 1792, T.I.A.S. No. 2846. As a matter of policy, efforts should be made to maximize the exercise of court-martial jurisdiction over persons subject to the code to the extent possible under applicable agreements. See R.C.M. 106 concerning delivery of offenders to civilian authorities. See also R.C.M. 201(g) concerning the jurisdiction of other military tribunals.
(2)(A) A commander of a unified or specified combatant command may convene courts-martial over members of any of the armed forces.
So much of the authority vested in the President under Article 22(a)(9) to empower any commanding officer of a joint command or joint task force to convene courts-martial is delegated to the Secretary of Defense, and such a commanding officer may convene general courts-martial for the trial of members of any of the armed forces assigned or attached to a combatant command or joint command.
A commander who is empowered to convene a court-martial under subsections
(e)(2)(A) or (e)(2)(B) of this rule may expressly authorize a commanding officer of a subordinate joint command or subordinate joint task force who is authorized to convene special and summary courts-martial to convene such courts-martial for the trial of members of other armed forces assigned or attached to a joint command or joint task force, under regulations which the superior command may prescribe.
The court-martial is convened by a commander authorized to convene courts-martial under subsection (e)(2) of this rule; or
The accused cannot be delivered to the armed force of which the accused is a member without manifest injury to the armed forces. An accused should not ordinarily be tried by a court-martial convened by a member of a different armed force except when the circumstances described in (A) or (B) exist. However, failure to comply with this policy does not affect an otherwise valid referral.
Nothing in this rule prohibits detailing to a court-martial a military judge, member, or counsel who is a member of an armed force different from that of the accused or the convening authority, or both.
In all cases, departmental review after that by the officer with authority to convene a general court-martial for the command which held the trial, where that review is required by the code, shall be carried out by the department that includes the armed force of which the accused is a member.
When there is a disagreement between the Secretaries of two military departments or between the Secretary of a military department and the commander of a unified or specified combatant command or other joint command or joint task force as to which organization should exercise jurisdiction over a particular case or class of cases, the Secretary of Defense or an official acting under the authority of the Secretary of Defense shall designate which organization will exercise jurisdiction.
Except as provided in subsections (5) and (6) or as otherwise directed by the President or Secretary of Defense, whenever action under this Manual is required or authorized to be taken by a person superior to-
a commander of a unified or specified combatant command or;
a commander of any other joint command or joint task force that is not part of a unified or specified combatant command, the matter shall be referred to the Secretary of the armed force of which the accused is a member. The Secretary may convene a court-martial, take other appropriate action, or, subject to R.C.M. 504(c), refer the matter to any person authorized to convene a court-martial of the accused.
As to the authority to convene courts-martial, see R.C.M. 504. "Manifest injury" does not mean minor inconvenience or expense. Examples of manifest injury include direct and substantial effect on morale, discipline, or military operations, substantial expense or delay, or loss of essential witnesses. As to the composition of a court-martial for the trial of an accused who is a member of another armed force, see R.C.M. 503(a)(3) Discussion. Cases involving two or more accused who are members of different armed forces should not be referred to a court-martial for a common trial.
[Note: R.C.M. 201(f)(1) and (f)(2) apply to offenses committed on or after 24 June 2014.]
Except as otherwise expressly provided, general courts-martial may try any person subject to the code for any offense made punishable under the code. General courts-martial also may try any person for a violation of Article 83, 104, or 106.
Upon a finding of guilty of an offense made punishable by the code, general courts-martial may, within limits prescribed by this Manual, adjudge any punishment authorized under R.C.M. 1003.
Notwithstanding any other rule, the death penalty may not be adjudged if:
Not specifically authorized for the offense by the code and Part IV of this Manual; or
The case has not been referred with a special instruction that the case is to be tried as capital.
The law of war; or
The law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or part by the military authority of the occupying power. The law of the occupied territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power.
Discussion
Subsection (f)(1)(B)(i)(b) is an exercise of the power of military government.
Discussion
Certain limitations on the discretion of military tribunals to adjudge punishment under the law of war are prescribed in international conventions. See, for example, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 68, 6 U.S.T. 3516, T.I.A.S. No. 3365.
A general court-martial composed only of a military judge does not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been referred to trial as noncapital.
Only a general court-martial has jurisdiction to try offenses under Articles 120(a), 120(b), 120b(a), and 120b(b), UCMJ, forcible sodomy under Article 125, UCMJ, and attempts thereof under Article 80, UCMJ.
Except as otherwise expressly provided, special courts-martial may try any person subject to the code for any noncapital offense made punishable by the code and, as provided in this rule, for capital offenses.
Upon a finding of guilty, special courts-martial may adjudge, under limitations prescribed by this Manual, any punishment authorized under R.C.M. 1003 except death, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year.
A bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, may not be adjudged by a special court-martial unless:
Counsel qualified under Article 27(b) is detailed to represent the accused; and
A military judge is detailed to the trial, except in a case in which a military judge could not be detailed because of physical conditions or military exigencies. Physical conditions or military exigencies, as the terms are here used, may exist under rare circumstances, such as on an isolated ship on the high seas or in a unit in an inaccessible area, provided compelling reasons exist why trial must be held at that time and at that place. Mere inconvenience does not constitute a physical condition or military exigency and does not excuse a failure to detail a military judge. If a military judge cannot be detailed because of physical conditions or military exigencies, a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, may be adjudged provided the other conditions have been met. In that event, however, the convening authority shall, prior to trial, make a written statement explaining why a military judge could not be obtained. This statement shall be appended to the record of trial and shall set forth in detail the reasons why a military judge could not be detailed, and why the trial had to be held at that time and place.
Discussion
See R.C.M. 503 concerning detailing the military judge and counsel. The requirement for counsel is satisfied when counsel qualified under Article 27(b), and not otherwise disqualified, has been detailed and made available, even though the accused may not choose to cooperate with, or use the services of, such detailed counsel. The physical condition or military exigency exception to the requirement for a military judge does not apply to the requirement for detailing counsel qualified under Article 27(b). See also R.C.M. 1103(c) concerning the requirements for a record of trial in special courts-martial.
A capital offense for which there is prescribed a mandatory punishment beyond the punitive power of a special court-martial shall not be referred to such a court-martial.
An officer exercising general court-martial jurisdiction over the command which includes the accused may permit any capital offense other than one described in subsection (f)(2)(C)(i) of this rule to be referred to a special court-martial for trial.
The Secretary concerned may authorize, by regulation, officers exercising special court-martial jurisdiction to refer capital offenses, other than those described in subsection (f)(2)(C)(i) of this rule, to trial by special court-martial without first obtaining the consent of the officer exercising general court-martial jurisdiction over the command.
Notwithstanding subsection (f)(2)(A), special courts-martial do not have jurisdiction over offenses under Articles 120(a), 120(b), 120b(a), and 120b(b), forcible sodomy under Article 125, UCMJ, and attempts thereof under Article 80, UCMJ. Such offenses shall not be referred to a special court-martial.
Discussion
Pursuant to the National Defense Authorization Act for Fiscal Year 2014, only a general court-martial has jurisdiction over penetrative sex offenses under subsections (a) and (b) of Article 120, subsections (a) and (b) of Article 120b, Article 125, and attempts to commit such penetrative sex offenses under Article 80, UCMJ.
Discussion
See R.C.M. 103(3) for a definition of capital offenses.
See R.C.M. 1301(c) and (d)(1).
The provisions of the code and this Manual conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
See Articles 104 and 106 for some instances of concurrent jurisdiction.
Courts-martial may try any person when authorized to do so under the code.
Court-martial jurisdiction is most commonly exercised over active duty personnel. In general, a person becomes subject to court-martial jurisdiction upon enlistment in or induction into the armed forces, acceptance of a commission, or entry onto active duty pursuant to orders. Court-martial jurisdiction over active duty personnel ordinarily ends on delivery of a discharge certificate or its equivalent to the person concerned issued pursuant to competent orders. Orders transferring a person to the inactive reserve are the equivalent of a discharge certificate for purposes of jurisdiction. These are several important qualifications and exceptions to these general guidelines.
(i) Enlistment.
"The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under [Article 2(a)] and a change of status from civilian to member of the armed forces shall be effective upon taking the oath of enlistment." Article 2(b). A person who is, at the time of enlistment, insane, intoxicated, or under the age of 17 does not have the capacity to enlist by law. No court-martial jurisdiction over such a person may exist as long as the incapacity continues. If the incapacity ceases to exist, a "constructive enlistment" may result under Article 2(c). See discussion of "constructive enlistment" below. Similarly, if the enlistment was involuntary, court-martial jurisdiction will exist only when the coercion is removed and a "constructive enlistment" under Article 2(c) is established. Persons age 17 (but not yet 18) may not enlist without parental consent. A parent or guardian may, within 90 days of its inception, terminate the enlistment of a 17-year-old who enlisted without parental consent, if the person has not yet reached the age of 18. 10 U.S.C. § 1170. See also DOD Directive 1332.14 and service regulations for specific rules on separation of persons 17 years of age on the basis of a parental request. Absent effective action by a parent or guardian to terminate such an enlistment, court-martial jurisdiction exists over the person. An application by a parent for release does not deprive a court-martial of jurisdiction to try a person for offenses committed before action is completed on such an application. Even if a person lacked capacity to understand the effect of enlistment or did not enlist voluntarily, a "constructive enlistment" may be established under Article 2(c), which provides: Notwithstanding any other provision of law, a person serving with an armed force who- submitted voluntary to military authority; met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority [that is, not insane, intoxicated, or under the age of 17] received military pay or allowances; and performed military duties;
is subject to [the code] until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. Even if a person never underwent an enlistment or induction proceeding of any kind, court-martial jurisdiction could be established under this provision.
(ii) Induction.
Court-martial jurisdiction does not extend to a draftee until: the draftee has completed an induction ceremony which was in substantial compliance with the requirements prescribed by statute and regulations; the draftee by conduct after an apparent induction, has waived objection to substantive defects in it; or a "constructive enlistment" under Article 2(c) exists. The fact that a person was improperly inducted (for example, because of incorrect classification or erroneous denial of exemption) does not of itself negate court-martial jurisdiction. When a person has made timely and persistent efforts to correct such an error, court-martial jurisdiction may be defeated if improper induction is found, depending on all the circumstances of the case.
(iii) Call to active duty.
A member of a reserve component may be called or ordered to active duty for a variety of reasons, including training, service in time of war or national emergency, discipline, or as a result of failure to participate satisfactorily in unit activities. When a person is ordered to active duty for failure to satisfactorily participate in unit activities, the order must substantially comply with procedures prescribed by regulations, to the extent due process requires, for court-martial jurisdiction to exist. Generally, the person must be given notice of the activation and the reasons therefor, and an opportunity to object to the activation. A person waives the right to contest involuntary activation by failure to exercise this right within a reasonable time after notice of the right to do so.
As indicated above, the delivery of a valid discharge certificate or its equivalent ordinarily serves to terminate court-martial jurisdiction.
(i) Effect of completion of term of service.
Completion of an enlistment or term of service does not by itself terminate court-martial jurisdiction. An original term of enlistment may be adjusted for a variety of reasons, such as making up time lost for unauthorized absence. Even after such adjustments are considered, court-martial jurisdiction normally continues past the time of scheduled separation until a discharge certificate or its equivalent is delivered or until the Government fails to act within a reasonable time after the person objects to continued retention. As indicated in subsection (c) of this rule, servicemembers may be retained past their scheduled time of separation, over protest, by action with a view to trial while they are still subject to the code. Thus, if action with a view to trial is initiated before discharge or the effective terminal date of self-executing orders, a person may be retained beyond the date that the period of service would otherwise have expired or the terminal date of such orders.
(ii) Effect of discharge and reenlistment.
For offenses occurring on or after 23 October 1992, under the 1992 Amendment to Article 3(a), a person who reenlists following a discharge may be tried for offenses committed during the earlier term of service. For offenses occurring prior to 23 October 1992, a person who reenlists following a discharge may be tried for offenses committed during the earlier term of service only if the offense was punishable by confinement for five (5) years or more and could not be tried in the courts of the United States or of a State, a Territory, or the District of Columbia. However, see (iii)(a) below.
(iii) Exceptions.
There are several exceptions to the general principle that court-martial jurisdiction terminates on discharge or its equivalent.
For offenses occurring on or after 23 October 1992, the person is, at the time of the court-martial, subject to the code, by reentry into the armed forces or otherwise. See Article 3(a) as amended by the National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992);
For offenses occurring before 23 October 1992,
The offense is one for which a court-martial may adjudge confinement for five (5) or more years;
The person cannot be tried in the courts of the United States or of a State, Territory, or the District of Columbia; and
The person is, at the time of the court-martial, subject to the code, by reentry into the armed forces or otherwise. See Article 3(a) prior to the 1992 amendment.
The discharge was issued before the end of the accused's term of enlistment for the purpose of reenlisting;
The person remains, at the time of the court-martial, subject to the code; and
The reenlistment occurred after 26 July 1982.
Persons in the custody of the armed forces serving a sentence imposed by a court-martial remain subject to the code and court-martial jurisdiction. A prisoner who has received a discharge and who remains in the custody of an armed force may be tried for an offense committed while a member of the armed forces and before the execution of the discharge as well as for offenses committed after it.
A person discharged from the armed forces who is later charged with having fraudulently obtained that discharge is, subject to the statute of limitations, subject to trial by court-martial on that charge, and is after apprehension subject to the code while in the custody of the armed forces for trial. Upon conviction of that charge such a person is subject to trial by court-martial for any offenses under the code committed before the fraudulent discharge.
No person who has deserted from the armed forces is relieved from court-martial jurisdiction by a separation from any later period of service.
When a person's discharge or other separation does not interrupt the status as a person belonging to the general category of persons subject to the code, court-martial jurisdiction over that person does not end. For example, when an officer holding a commission in a Reserve component of an armed force is discharged from that commission while on active duty because of acceptance of a commission in a Regular component of that armed force, without an interval between the periods of service under the two commissions, that officer's military status does not end. There is merely a change in personnel status from temporary to permanent officer, and court-martial jurisdiction over an offense committed before the discharge is not affected.
Members of the Public Health Service and the National Oceanic and Atmospheric Administration become subject to the code when assigned to and serving with the armed forces.
Court-martial jurisdiction over civilians under the code is limited by the Constitution and other applicable laws, including as construed in judicial decisions. The exercise of jurisdiction under Article 2(a)(11) in peace time has been held unconstitutional by the Supreme Court of the United States. Before initiating court-martial proceedings against a civilian, relevant statutes, decisions, service regulations, and policy memoranda should be carefully examined.
Members of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training, are subject to the code. Moreover, members of a reserve component are amenable to the jurisdiction of courts-martial notwithstanding the termination of a period of such duty. See R.C.M. 204.
Nothing in this rule limits the power of general courts-martial to try persons under the law of war. See R.C.M. 201(f)(1)(B).
Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken. Once court-martial jurisdiction over a person attaches, such jurisdiction shall continue for all purposes of trial, sentence, and punishment, notwithstanding the expiration of that person's term of service or other period in which that person was subject to the code or trial by court-martial. When jurisdiction attaches over a servicemember on active duty, the servicemember may be held on active duty over objection pending disposition of any offense for which held and shall remain subject to the code during the entire period.
Court-martial jurisdiction exists to try a person as long as that person occupies a status as a person subject to the code. See also Article 104 and 106. Thus, a servicemember is subject to court-martial jurisdiction until lawfully discharged or, when the servicemember's term of service has expired, the government fails to act within a reasonable time on objection by the servicemember to continued retention. Court-martial jurisdiction attaches over a person upon action with a view to trial. Once court-martial jurisdiction attaches, it continues throughout the trial and appellate process, and for purposes of punishment. If jurisdiction has attached before the effective terminal date of self-executing orders, the person may be held for trial by court-martial beyond the effective terminal date.
Actions by which court-martial jurisdiction attaches include: apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges.
To the extent permitted by the Constitution, courts-martial may try any offense under the code and, in the case of general courts-martial, the law of war.
Courts-martial have power to try any offense under the code except when prohibited from so doing by the Constitution. The rule enunciated in_ Solorio v. United States_, 483 U.S. 435 (1987) is that jurisdiction of courts-martial depends solely on the accused's status as a person subject to the Uniform Code of Military Justice, and not on the "service-connection" of the offense charged.
Normally, the inclusion of the accused's rank or grade will be sufficient to plead the service status of the accused. Ordinarily, no allegation of the accused's armed force or unit is necessary for military members on active duty. See R.C.M. 307 regarding required specificity of pleadings.
The Secretary concerned shall prescribe regulations setting forth rules and procedures for the exercise of court-martial jurisdiction and nonjudicial punishment authority over reserve component personnel under Article 2(a)(3) and 2(d), subject to the limitations of this Manual and the UCMJ.
Such regulations should describe procedures for ordering a reservist to active duty for disciplinary action, for the preferral, investigation, forwarding, and referral of charges, designation of convening authorities and commanders authorized to conduct nonjudicial punishment proceedings, and for other appropriate purposes. See definitions in R.C.M. 103 (Discussion). See paragraph 5e and f, Part V, concerning limitations on nonjudicial punishments imposed on reservists while on inactive-duty training. Members of the Army National Guard and the Air National Guard are subject to Federal court-martial jurisdiction only when the offense concerned is committed while the member is in Federal service.
A member of a reserve component must be on active duty prior to arraignment at a general or special court-martial. A member ordered to active duty pursuant to Article 2(d) may be retained on active duty to serve any adjudged confinement or other restriction on liberty if the order to active duty was approved in accordance with Article 2(d)(5), but such member may not be retained on active duty pursuant to Article 2(d) after service of the confinement or other restriction on liberty. All punishments remaining unserved at the time the member is released from active duty may be carried over to subsequent periods of inactive-duty training or active duty.
An accused ordered to active duty pursuant to Article 2(d) may be retained on active duty after service of the punishment if permitted by other authority. For example, an accused who commits another offense while on active duty ordered pursuant to Article 2(d) may be retained on active duty pursuant to R.C.M. 202(c)(1).
A member of a reserve component may be tried by summary court-martial either while on active duty or inactive-duty training. A summary court-martial conducted during inactive-duty training may be in session only during normal periods of such training. The accused may not be held beyond such periods of training for trial or service or any punishment. All punishments remaining unserved at the end of a period of active duty or the end of any normal period of inactive duty training may be carried over to subsequent periods of inactive-duty training or active duty.
A "normal period" of inactive-duty training does not include periods which are scheduled solely for the purpose of conducting court-martial proceedings.
This subsection is not applicable when a member is held on active duty pursuant to R.C.M. 202(c).
A member of a reserve component at the time disciplinary action is initiated, who is alleged to have committed an offense while on active duty or inactive-duty training, is subject to court-martial jurisdiction without regard to any change between active and reserve service or within different categories of reserve service subsequent to commission of the offense. This subsection does not apply to a person whose military status was completely terminated after commission of an offense.
A member of a regular or reserve component remains subject to court-martial jurisdiction after leaving active duty for offenses committed prior to such termination of active duty if the member retains military status in a reserve component without having been discharged from all obligations of military service. See R.C.M. 202(a), Discussion, paragraph (2)(B)(ii) and (iii) regarding the jurisdictional effect of a discharge from military service. A "complete termination" of military status refers to a discharge relieving the servicemember of any further military service. It does not include a discharge conditioned upon acceptance of further military service.
Only persons authorized to convene courts-martial or to administer nonjudicial punishment under Article 15 may dispose of charges. A superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.
See R.C.M. 504 as to who may convene courts-martial and paragraph 2 of Part V as to who may administer nonjudicial punishment. If the power to convene courts-martial and to administer nonjudicial punishment has been withheld, a commander may not dispose of charges under this rule. Ordinarily charges should be forwarded to the accused's immediate commander for initial consideration as to disposition. Each commander has independent discretion to determine how charges will be disposed of, except to the extent that the commander's authority has been withheld by superior competent authority. See also R.C.M. 104. Each commander who forwards or disposes of charges may make minor changes therein. See R.C.M. 603(a) and (b). If major changes are necessary, the affected charge should be preferred anew. See R.C.M. 603(d). If a commander is an accuser (see Article 1(9); 307(a)) that commander is ineligible to refer such charges to a general or special court-martial. See R.C.M. 601(c). However, see R.C.M. 1302(b) (accuser may refer charges to a summary court-martial).
When a commander with authority to dispose of charges receives charges, that commander shall promptly determine what disposition will be made in the interest of justice and discipline.
In determining what level of disposition is appropriate, see R.C.M. 306(b) and (c). When charges are brought against two or more accused with a view to a joint or common trial, see R.C.M. 307(c)(5); 601(e)(3). If it appears that the accused may lack mental capacity to stand trial or may not have been mentally responsible at the times of the offenses, see R.C.M. 706; 909; 916(k). As to the rules concerning speedy trial, see R.C.M. 707. See also Articles 10; 30; 33; 98. Before determining an appropriate disposition, a commander who receives charges should ensure that: (1) a preliminary inquiry under R.C.M. 303 has been conducted; (2) the accused has been notified in accordance with R.C.M. 308; and (3) the charges are in proper form.
Unless the authority to do so has been limited or withheld by superior competent authority, a commander may dispose of charges by dismissing any or all of them, forwarding any or all of them to another commander for disposition, or referring any or all of them to a court-martial which the commander is empowered to convene. Charges should be disposed of in accordance with the policy in R.C.M. 306(b).
A commander may dispose of charges individually or collectively. If charges are referred to a court-martial, ordinarily all known charges should be referred to a single court-martial. See Appendix 3 when the charges may involve matters in which the Department of Justice has an interest.
When a commander dismisses charges further disposition under R.C.M. 306(c) of the offenses is not barred.
Charges are ordinarily dismissed by lining out and initialing the deleted specifications or otherwise recording that a specification is dismissed. When all charges and specifications are dismissed, the accuser and the accused ordinarily should be informed. A charge should be dismissed when it fails to state an offense, when it is unsupported by available evidence, or when there are other sound reasons why trial by court-martial is not appropriate. Before dismissing charges because trial would be detrimental to the prosecution of a war or harmful to national security, see R.C.M. 401(d); 407(b). If the accused has already refused nonjudicial punishment, charges should not be dismissed with a view to offering nonjudicial punishment unless the accused has indicated willingness to accept nonjudicial punishment if again offered. The decision whether to dismiss charges in such circumstances is within the sole discretion of the commander concerned. Charges may be amended in accordance with R.C.M. 603. It is appropriate to dismiss a charge and prefer another charge anew when, for example, the original charge failed to state an offense, or was so defective that a major amendment was required (see R.C.M. 603(d)), or did not adequately reflect the nature or seriousness of the offense. See R.C.M. 907(b)(2)(C) concerning the effect of dismissing charges after the court-martial has begun.
When charges are forwarded to a superior commander for disposition, the forwarding commander shall make a personal recommendation as to disposition. If the forwarding commander is disqualified from acting as convening authority in the case, the basis for the disqualification shall be noted.
A commander's recommendation is within that commander's sole discretion. No authority may direct a commander to make a specific recommendation as to disposition. When charges are forwarded to a superior commander with a view to trial by general or special court-martial, they should be forwarded by a letter of transmittal or indorsement. To the extent practicable without unduly delaying forwarding the charges, the letter should include or carry as enclosures: a summary of the available evidence relating to each offense; evidence of previous convictions and nonjudicial punishments of the accused; an indication that the accused has been offered and refused nonjudicial punishment, if applicable; and any other matters required by superior authority or deemed appropriate by the forwarding commander. Other matters which may be appropriate include information concerning the accused's background and character of military service, and a description of any unusual circumstances in the case. The summary of evidence should include available witness statements, documentary evidence, and exhibits. When practicable, copies of signed statements of the witnesses should be forwarded, as should copies of any investigative or laboratory reports. Forwarding charges should not be delayed, however, solely to obtain such statements or reports when it otherwise appears that sufficient evidence to warrant trial is or will be available in time for trial. If because of the bulk of documents or exhibits, it is impracticable to forward them with the letter of transmittal, they should be properly preserved and should be referred to in the letter of transmittal. When it appears that any witness may not be available for later proceedings in the case or that a deposition may be appropriate, that matter should be brought to the attention of the convening authority promptly and should be noted in the letter of transmittal. When charges are forwarded with a view to disposition other than trial by general or special court-martial, they should be accompanied by sufficient information to enable the authority receiving them to dispose of them without further investigation.
When charges are forwarded to a commander who is not a superior of the forwarding commander, no recommendation as to disposition may be made.
Except when directed to forward charges, a subordinate commander may not be required to take any specific action to dispose of charges. See R.C.M. 104. See also paragraph 1d(2) of Part V. When appropriate, charges may be sent or returned to a subordinate commander for compliance with procedural requirements. See, for example, R.C.M. 303 (preliminary inquiry); R.C.M. 308 (notification to accused of charges).
See R.C.M. 403, 404, 407, 601.
If a commander who is not a general court-martial convening authority finds that the charges warrant trial by court-martial but believes that trial would probably be detrimental to the prosecution of a war or harmful to national security, the charges shall be forwarded to the officer exercising general court-martial convening authority.
See R.C.M. 407(b).
Immediately upon receipt of sworn charges, an officer exercising summary court-martial jurisdiction over the command shall cause the hour and date of receipt to be entered on the charge sheet.
See Article 24 and R.C.M. 1302(a) concerning who may exercise summary court-martial jurisdiction. The entry indicating receipt is important because it stops the running of the statute of limitations. See Article 43; R.C.M. 907(b)(2)(B). Charges may be preferred and forwarded to an officer exercising summary court-martial jurisdiction over the command to stop the running of the statute of limitations even though the accused is absent without authority.
When in receipt of charges a commander exercising summary court-martial jurisdiction may:
See R.C.M. 401(c)(1) concerning dismissal of charges, the effect of dismissing charges, and options for further action.
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. When appropriate, charges may be forwarded to a subordinate even if the subordinate previously considered them.
See R.C.M. 401(c)(2)(A) for guidance concerning forwarding charges to a superior.
See R.C.M. 1302(c) concerning referral of charges to a summary court-martial.
An investigation should be directed when it appears that the charges are of such a serious nature that trial by general court-martial may be warranted. See R.C.M. 405. If an investigation of the subject matter already has been conducted, see R.C.M. 405(b).
When in receipt of charges, a commander exercising special court-martial jurisdiction may:
See R.C.M. 401(c)(1) concerning dismissal of charges, the effect of dismissing charges, and options for further action.
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. When appropriate, charges may be forwarded to a subordinate even if that subordinate previously considered them.
See R.C.M. 401(c)(2)(A) for guidance concerning forwarding charges to a superior.
See Article 23 and R.C.M. 504(b)(2) concerning who may convene special courts-martial. See R.C.M. 601 concerning referral of charges to a special court-martial. See R.C.M. 1302(c) concerning referral of charges to a summary court-martial.
A preliminary hearing should be directed when it appears that the charges are of such a serious nature that trial by general court-martial may be warranted. See R.C.M. 405. If a preliminary hearing of the subject matter already has been conducted, see R.C.M. 405(b) and 405(e)(2).
Charge sheet;
Article 32 appointing order;
Documents accompanying the charge sheet on which the preferral decision was based;
Documents provided to the convening authority when deciding to direct the preliminary hearing;
Documents the counsel for the government intends to present at the preliminary hearing; and
Access to tangible objects counsel for the government intends to present at the preliminary hearing.
If items covered by subsection 404A(a) above are contraband, the disclosure required under this rule is a reasonable opportunity to inspect said contraband prior to the hearing.
If items covered by subsection 404A(a) above are privileged, classified or otherwise protected under Section V of Part III, no disclosure of those items is required under this rule. However, counsel for the government may disclose privileged, classified, or otherwise protected information covered by subsection 404A(a) above if authorized by the holder of the privilege, or in the case of Mil. R. Evid. 505 or 506, if authorized by a competent authority.
If the government agrees to disclose to the accused information to which the protections afforded by Section V of Part III may apply, the convening authority, or other person designated by regulation of the Secretary concerned, may enter an appropriate protective order, in writing, to guard against the compromise of information disclosed to the accused. The terms of any such protective order may include prohibiting the disclosure of the information except as authorized by the authority issuing the protective order, as well as those terms specified by Mil. R. Evid. 505(g)(2)-(6) or 506(g)(2)(5).
The purposes of this rule are to provide the accused with the documents used to make the determination to prefer charges and direct a preliminary hearing, and to allow the accused to prepare for the preliminary hearing. This rule is not intended to be a tool for discovery and does not impose the same discovery obligations found in R.C.M. 405 prior to amendments required by the National Defense Authorization Act for Fiscal Year 2014 or R.C.M. 701. Additional rules for disclosure of witnesses and other evidence in the preliminary hearing are provided in R.C.M. 405(g).
Except as provided in subsection (k) of this rule, no charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing in substantial compliance with this rule. A preliminary hearing conducted under this rule is not intended to serve as a means of discovery and will be limited to an examination of those issues necessary to determine whether there is probable cause to conclude that an offense or offenses have been committed and whether the accused committed it; to determine whether a court-martial would have jurisdiction over the offense(s) and the accused; to consider the form of the charge(s); and to recommend the disposition that should be made of the charge(s). Failure to comply with this rule shall have no effect on the disposition of the charge(s) if the charge(s) is not referred to a general court-martial.
The function of the preliminary hearing is to ascertain and impartially weigh the facts needed for the limited scope and purpose of the preliminary hearing. The preliminary hearing is not intended to perfect a case against the accused and is not intended to serve as a means of discovery or to provide a right of confrontation required at trial. Determinations and recommendations of the preliminary hearing officer are advisory. Failure to substantially comply with the requirements of Article 32, which failure prejudices the accused, may result in delay in disposition of the case or disapproval of the proceedings. See R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate relief relating to the preliminary hearing. The accused may waive the preliminary hearing. See subsection (k) of this rule. In such case, no preliminary hearing need be held. However, the convening authority authorized to direct the preliminary hearing may direct that it be conducted notwithstanding the waiver.
If a preliminary hearing of the subject matter of an offense has been conducted before the accused is charged with an offense, and the accused was present at the preliminary hearing and afforded the rights to counsel, cross-examination, and presentation of evidence required by this rule, no further preliminary hearing is required.
Unless prohibited by regulations of the Secretary concerned, a preliminary hearing may be directed under this rule by any court-martial convening authority. That authority may also give procedural instructions not inconsistent with these rules.
Whenever practicable, the convening authority directing a preliminary hearing under this rule shall detail an impartial judge advocate certified under Article 27(b), not the accuser, as a preliminary hearing officer, who shall conduct the preliminary hearing and make a report that addresses whether there is probable cause to believe that an offense or offenses have been committed and that the accused committed the offense(s); whether a court-martial would have jurisdiction over the offense(s) and the accused; the form of the charges(s); and a recommendation as to the disposition of the charge(s). When the appointment of a judge advocate as the preliminary hearing officer is not practicable, or in exceptional circumstances in which the interest of justice warrants, the convening authority directing the preliminary hearing may detail an impartial commissioned officer, who is not the accuser, as the preliminary hearing officer. If the preliminary hearing officer is not a judge advocate, an impartial judge advocate certified under Article 27(b) shall be available to provide legal advice to the preliminary hearing officer. When practicable, the preliminary hearing officer shall be equal or senior in grade to the military counsel detailed to represent the accused and the government at the preliminary hearing. The Secretary concerned may prescribe additional limitations on the appointment of preliminary hearing officers. The preliminary hearing officer shall not depart from an impartial role and become an advocate for either side. The preliminary hearing officer is disqualified to act later in the same case in any other capacity.
The preliminary hearing officer, if not a judge advocate, should be an officer in the grade of O-4 or higher. The preliminary hearing officer may seek legal advice concerning the preliminary hearing officer's responsibilities from an impartial source, but may not obtain such advice from counsel for any party or counsel for a victim.
A judge advocate, not the accuser, shall serve as counsel to represent the United States, and shall present evidence on behalf of the government relevant to the limited scope and purpose of the preliminary hearing as set forth in subsection (a) of this rule.
The commander who directed the investigation may also, as a matter of discretion, detail or request an appropriate authority to detail:
Except as provided in subsection (d)(3)(B) of this rule, military counsel certified in accordance with Article 27(b) shall be detailed to represent the accused.
The accused may request to be represented by individual military counsel. Such requests shall be acted on in accordance with R.C.M. 506(b).
The accused may be represented by civilian counsel at no expense to the United States. Upon request, the accused is entitled to a reasonable time to obtain civilian counsel and to have such counsel present for the preliminary hearing. However, the preliminary hearing shall not be unduly delayed for this purpose. Representation by civilian counsel shall not limit the rights to military counsel under subsections (d)(3)(A) and (B) of this rule.
The convening authority who directed the preliminary hearing may also, as a matter of discretion, detail or request an appropriate authority to detail:
A reporter; and
An interpreter.
Determine whether there is probable cause to believe an offense or offenses have been committed and whether the accused committed it;
Determine whether a court-martial would have jurisdiction over the offense(s) and the accused;
Consider whether the form of the charge(s) is proper; and
Make a recommendation as to the disposition of the charge(s).
Except as set forth in subsection (h) below, the Mil. R. Evid. do not apply at a preliminary hearing. Except as prohibited elsewhere in this rule, a preliminary hearing officer may consider evidence, including hearsay, which would not be admissible at trial.
For purposes of this rule, a "written statement" is one that is signed or otherwise adopted or approved by the witness that is within the possession or control of counsel for the government; and
For purposes of this rule, a "recorded statement" is an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a digital or other recording or a transcription thereof that is within the possession or control of counsel for the government.
Notice of, and reasonable access to, any other evidence that the government intends to offer at the preliminary hearing; and
Notice of, and reasonable access to, evidence that is within the possession or control of counsel for the government that negates or reduces the degree of guilt of the accused for an offense charged.
Be advised of the charges under consideration;
Be represented by counsel;
Be informed of the purpose of the preliminary hearing;
Be informed of the right against self-incrimination under Article 31;
Except in the circumstances described in R.C.M. 804(c)(2), be present throughout the taking of evidence;
Cross-examine witnesses on matters relevant to the limited scope and purpose of the preliminary hearing;
Present matters in defense and mitigation relevant to the limited scope and purpose of the preliminary hearing; and
Discussion
Unsworn statements by the accused, unlike those made under R.C.M. 1001(c)(2), shall be limited to matters in defense and mitigation.
Prior to the preliminary hearing, defense counsel shall provide to counsel for the government the names of proposed military witnesses whom the accused requests that the government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the government shall respond that either: (1) the government agrees that the witness's testimony is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will seek to secure the witness's testimony for the hearing; or (2) the government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
If the government objects to the proposed defense witness, defense counsel may request that the preliminary hearing officer determine whether the witness is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing.
If the government does not object to the proposed defense military witness or the preliminary hearing officer determines that the military witness is relevant, not cumulative, and necessary, counsel for the government shall request that the commanding officer of the proposed military witness make that person available to provide testimony. The commanding officer shall determine whether the individual is available based on operational necessity or mission requirements, except that a victim, as defined in this rule, who declines to testify shall be deemed to be not available. If the commanding officer determines that the military witness is available, counsel for the government shall make arrangements for that individual's testimony. The commanding officer's determination of unavailability due to operational necessity or mission requirements is final. The military witness's commanding officer determines the availability of the witness and, if there is a dispute among the parties, determines whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony.
A commanding officer's determination of whether an individual is available, as well as the means by which the individual is available, is a balancing test. The more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to deny production of the witness. Based on operational necessity and mission requirements, the witness's commanding officer may authorize the witness to testify by video teleconference, telephone, or similar means of remote testimony. Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; and the likelihood of significant interference with operational deployment, mission accomplishment, or essential training.
Defense counsel shall provide to counsel for the government the names of proposed civilian witnesses whom the accused requests that the government produce to testify at the preliminary hearing, and the requested form of the testimony, in accordance with the timeline established by the preliminary hearing officer. Counsel for the government shall respond that either: (1) the government agrees that the witness's testimony is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will seek to secure the witness's testimony for the hearing; or (2) the government objects to the proposed defense witness on the grounds that the testimony would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
If the government does not object to the proposed civilian witness or the preliminary hearing officer determines that the civilian witness's testimony is relevant, not cumulative, and necessary, counsel for the government shall invite the civilian witness to provide testimony and, if the individual agrees, shall make arrangements for that witness's testimony. If expense to the government is to be incurred, the convening authority who directed the preliminary hearing, or the convening authority's delegate, shall determine whether the witness testifies in person, by video teleconference, by telephone, or by similar means of remote testimony.
Factors to be considered in making this determination include the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; the willingness of the witness to testify in person; and, for child witnesses, the traumatic effect of providing in-person testimony. Civilian witnesses may not be compelled to provide testimony at a preliminary hearing. Civilian witnesses may be paid for travel and associated expenses to testify at a preliminary hearing. See Department of Defense Joint Travel Regulations.
Prior to the preliminary hearing, defense counsel shall provide to counsel for the government a list of evidence under the control of the government the accused requests the government produce to the defense for introduction at the preliminary hearing. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the government shall respond that either: (1) the government agrees that the evidence is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and shall make reasonable efforts to obtain the evidence; or (2) the government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
If the government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. The preliminary hearing officer shall determine whether the evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the hearing. If the preliminary hearing officer determines that the evidence shall be produced, counsel for the government shall make reasonable efforts to obtain the evidence.
Evidence not under the control of the government may be obtained through noncompulsory means or by subpoenas duces tecum issued by counsel for the government in accordance with the process established by R.C.M. 703.
Prior to the preliminary hearing, defense counsel shall provide to counsel for the government a list of evidence not under the control of the government that the accused requests the government obtain. The preliminary hearing officer may set a deadline by which defense requests must be received. Counsel for the government shall respond that either: (1) the government agrees that the evidence is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and shall issue subpoenas duces tecum for the evidence; or (2) the government objects to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
If the government objects to production of the evidence, defense counsel may request that the preliminary hearing officer determine whether the evidence should be produced. If the preliminary hearing officer determines that the evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing and that the issuance of subpoenas duces tecum would not cause undue delay to the preliminary hearing, the preliminary hearing officer shall direct counsel for the government to issue subpoenas duces tecum for the defense-requested evidence. Failure on the part of counsel for the government to issue subpoenas duces tecum directed by the preliminary hearing officer shall be noted by the preliminary hearing officer in the report of preliminary hearing.
Discussion
A subpoena duces tecum to produce books, papers, documents, data, electronically stored information, or other objects for a preliminary hearing pursuant to Article 32 may be issued by counsel for the government. The preliminary hearing officer has no authority to issue a subpoena duces tecum. However, the preliminary hearing officer may direct counsel for the government to issue a subpoena duces tecum for defense-requested evidence.
The Military Rules of Evidence do not apply in preliminary hearings under this rule except as follows:
Mil. R. Evid. 301-303 and 305 shall apply in their entirety.
Mil. R. Evid. 412 shall apply in any case that includes a charge defined as a sexual offense in Mil. R. Evid. 412(d), except that Mil. R. Evid. 412(b)(1)(C) shall not apply.
Mil. R. Evid., Section V, Privileges, shall apply, except that Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); and 514(d)(6) shall not apply.
In applying these rules to a preliminary hearing, the term "military judge," as used in these rules, shall mean the preliminary hearing officer, who shall assume the military judge's authority to exclude evidence from the preliminary hearing, and who shall, in discharging this duty, follow the procedures set forth in the rules cited in subsections (h)(1)-(3) of this rule. However, the preliminary hearing officer is not authorized to order production of communications covered by Mil. R. Evid. 513 and 514.
The prohibition against ordering production of evidence does not preclude a preliminary hearing officer from considering evidence offered by the parties under Mil. R. Evid. 513 or 514.
Before considering evidence offered under subsection (h)(2), the preliminary hearing officer must determine that the evidence offered is relevant for the limited scope and purpose of the hearing, that the evidence is proper under subsection (h)(2), and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy. The preliminary hearing officer shall set forth any limitations on the scope of such evidence. Evidence offered under subsection (h)(2) above must be protected pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a. Although Mil. R. Evid. 412(b)(1)(C) allows admission of evidence of the victim's sexual behavior or predisposition at trial when it is constitutionally required, there is no constitutional requirement at an Article 32 hearing. There is likewise no constitutional requirement for a pretrial hearing officer to consider evidence under Mil. R. Evid. 514(d)(6) at an Article 32 hearing. Evidence deemed admissible by the preliminary hearing officer should be made a part of the report of preliminary hearing. See subsection (j)(2)(C), infra. Evidence not considered, and the testimony taken during a closed hearing, should not be included in the report of preliminary hearing but should be appropriately safeguarded or sealed. The preliminary hearing officer and counsel representing the government are responsible for careful handling of any such evidence to prevent unauthorized viewing or disclosure.
The preliminary hearing shall begin with the preliminary hearing officer informing the accused of the accused's rights under subsection (f) of this rule. Counsel for the government will then present evidence. Upon the conclusion of counsel for the government's presentation of evidence, defense counsel may present matters in defense and mitigation consistent with subsection (f) of this rule. For the purposes of this rule, "matters in mitigation" are defined as matters that may serve to explain the circumstances surrounding a charged offense. Both counsel for the government and defense shall be afforded an opportunity to cross-examine adverse witnesses. The preliminary hearing officer may also question witnesses called by the parties. If the preliminary hearing officer determines that additional evidence is necessary to satisfy the requirements of subsection (e) above, the preliminary hearing officer may provide the parties an opportunity to present additional testimony or evidence relevant to the limited scope and purpose of the preliminary hearing. The preliminary hearing officer shall not consider evidence not presented at the preliminary hearing. The preliminary hearing officer shall not call witnesses sua sponte.
A preliminary hearing officer may only consider evidence within the limited purpose of the preliminary hearing and shall ensure that the scope of the hearing is limited to that purpose. When the preliminary hearing officer finds that evidence offered by either party is not within the scope of the hearing, he shall inform the parties and halt the presentation of that information.
The victim(s) of an offense under the UCMJ has the right to reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense and the reasonable right to confer with counsel for the government. For the purposes of this rule, a "victim" is a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.
A victim of an offense under consideration at the preliminary hearing is not required to testify at the preliminary hearing.
A victim has the right not to be excluded from any portion of a preliminary hearing related to the alleged offense, unless the preliminary hearing officer, after receiving clear and convincing evidence, determines the testimony by the victim would be materially altered if the victim heard other testimony at the proceeding.
A victim shall be excluded if a privilege set forth in Mil. R. Evid. 505 or 506 is invoked or if evidence is offered under Mil. R. Evid. 412, 513, or 514, for charges other than those in which the victim is named.
Witness testimony may be provided in person, by video teleconference, by telephone, or by similar means of remote testimony. All testimony shall be taken under oath, except that the accused may make an unsworn statement. The preliminary hearing officer shall only consider testimony that is relevant to the limited scope and purpose of the preliminary hearing.
The following oath may be given to witnesses: "Do you (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?" The preliminary hearing officer is required to include in the report of the preliminary hearing, at a minimum, a summary of the substance of all testimony. See subsection (j)(2)(B) of this rule. All preliminary hearing officer notes of testimony and recordings of testimony should be preserved until the end of trial. If during the preliminary hearing any witness subject to the Code is suspected of an offense under the Code, the preliminary hearing officer should comply with the warning requirements of Mil. R. Evid. 305(c), (d), and, if necessary, (e). Bearing in mind that counsel are responsible for preparing and presenting their cases, the preliminary hearing officer may ask a witness questions relevant to the limited scope and purpose of the hearing. When questioning a witness, the preliminary hearing officer may not depart from an impartial role and become an advocate for either side.
If relevant to the limited scope and purpose of the preliminary hearing, and not cumulative, a preliminary hearing officer may consider other evidence, in addition to or in lieu of witness testimony, including statements, tangible evidence, or reproductions thereof, offered by either side, that the preliminary hearing officer determines is reliable. This other evidence need not be sworn.
Access by spectators to all or part of the proceedings may be restricted or foreclosed in the discretion of the convening authority who directed the preliminary hearing or the preliminary hearing officer. Preliminary hearings are public proceedings and should remain open to the public whenever possible. When an overriding interest exists that outweighs the value of an open preliminary hearing, the preliminary hearing may be closed to spectators. Any closure must be narrowly tailored to achieve the overriding interest that justified the closure. Convening authorities or preliminary hearing officers must conclude that no lesser methods short of closing the preliminary hearing can be used to protect the overriding interest in the case. Convening authorities or preliminary hearing officers must conduct a case-by-case, witness-by-witness, circumstance-by-circumstance analysis of whether closure is necessary. If a convening authority or preliminary hearing officer believes closing the preliminary hearing is necessary, the convening authority or preliminary hearing officer must make specific findings of fact in writing that support the closure. The written findings of fact must be included in the report of preliminary hearing. Examples of overriding interests may include: preventing psychological harm or trauma to a child witness or an alleged victim of a sexual crime, protecting the safety or privacy of a witness or alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting.
The further progress of the taking of evidence shall not be prevented and the accused shall be considered to have waived the right to be present whenever the accused:
After being notified of the time and place of the proceeding is voluntarily absent; or
After being warned by the preliminary hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct which is such as to justify exclusion from the proceeding.
Counsel for the government shall ensure that the preliminary hearing is recorded by a suitable recording device. A victim, as defined by subsection (i)(2)(A) of this rule, may request access to, or a copy of, the recording of the proceedings. Upon request, counsel for the government shall provide the requested access to, or a copy of, the recording to the victim not later than a reasonable time following dismissal of the charges, unless charges are dismissed for the purpose of re-referral, or court-martial adjournment. A victim is not entitled to classified information or access to or a copy of a recording of closed sessions which the victim did not have the right to attend under subsections (i)(2)(C) or (i)(2)(D) of this rule.
Counsel for the government shall provide victims with access to, or a copy of, the recording of the proceedings in accordance with such regulations as the Secretary concerned may prescribe.
Any objection alleging failure to comply with this rule shall be made to the convening authority via the preliminary hearing officer.
The preliminary hearing officer has the authority to order exhibits, proceedings, or other matters sealed as described in R.C.M. 1103A.
The preliminary hearing officer shall make a timely written report of the preliminary hearing to the convening authority who directed the preliminary hearing.
If practicable, the charges and the report of preliminary hearing should be forwarded to the general court-martial convening authority within 8 days after an accused is ordered into arrest or confinement. See Article 33, UCMJ.
The report of preliminary hearing shall include:
A statement of names and organizations or addresses of defense counsel and whether defense counsel was present throughout the taking of evidence, or if not present the reason why;
The substance of the testimony taken on both sides;
Any other statements, documents, or matters considered by the preliminary hearing officer, or recitals of the substance or nature of such evidence;
A statement that an essential witness may not be available for trial;
An explanation of any delays in the preliminary hearing;
A notation if counsel for the government failed to issue a subpoena duces tecum that was directed by the preliminary hearing officer;
The preliminary hearing officer's determination as to whether there is probable cause to believe the offense(s) listed on the charge sheet or otherwise considered at the preliminary hearing occurred;
The preliminary hearing officer's determination as to whether there is probable cause to believe the accused committed the offense(s) listed on the charge sheet or otherwise considered at the preliminary hearing;
The preliminary hearing officer's determination as to whether a court-martial has jurisdiction over the offense(s) and the accused;
The preliminary hearing officer's determination as to whether the charge(s) and specification(s) are in proper form; and
The recommendations of the preliminary hearing officer regarding disposition of the charge(s).
The preliminary hearing officer may include any additional matters useful to the convening authority in determining disposition. The preliminary hearing officer may recommend that the charges and specifications be amended or that additional charges be preferred. See R.C.M. 306 and 401 concerning other possible dispositions.
. If the report of preliminary hearing contains exhibits, proceedings, or other matters ordered sealed by the preliminary hearing officer in accordance with R.C.M. 1103A, counsel for the government shall cause such materials to be sealed so as to prevent unauthorized viewing or disclosure.
The preliminary hearing officer shall cause the report to be delivered to the convening authority who directed the preliminary hearing. That convening authority shall promptly cause a copy of the report to be delivered to each accused.
Any objection to the report shall be made to the convening authority who directed the preliminary hearing, via the preliminary hearing officer, within 5 days of its receipt by the accused. This subsection does not prohibit a convening authority from referring the charge(s) or taking other action within the 5-day period.
The accused may waive a preliminary hearing under this rule. In addition, failure to make a timely objection under this rule, including an objection to the report, shall constitute waiver of the objection. Relief from the waiver may be granted by the convening authority who directed the preliminary hearing, a superior convening authority, or the military judge, as appropriate, for good cause shown.
See also R.C.M. 905(b)(1); 906(b)(3). The convening authority who receives an objection may direct that the preliminary hearing be reopened or take other action, as appropriate.
Before any charge may be referred for trial by a general court-martial, it shall be referred to the staff judge advocate of the convening authority for consideration and advice.
A pretrial advice need not be prepared in cases referred to special or summary courts-martial. A convening authority may, however, seek the advice of a lawyer before referring charges to such a court-martial. When charges have been withdrawn from a general court-martial (see R.C.M. 604) or when a mistrial has been declared in a general court-martial ( see R.C.M. 915), supplementary advice is necessary before the charges may be referred to another general court-martial. The staff judge advocate may make changes in the charges and specifications in accordance with R.C.M. 603.
The advice of the staff judge advocate shall include a written and signed statement which sets forth that person's:
Conclusion with respect to whether each specification alleges an offense under the code;
Conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of preliminary hearing (if there is such a report);
Conclusion with respect to whether a court-martial would have jurisdiction over the accused and the offense; and
Recommendation of the action to be taken by the convening authority.
The staff judge advocate is personally responsible for the pretrial advice and must make an independent and informed appraisal of the charges and evidence in order to render the advice. Another person may prepare the advice, but the staff judge advocate is, unless disqualified, responsible for it and must sign it personally. Grounds for disqualification in a case include previous action in that case as preliminary hearing officer, military judge, trial counsel, defense counsel, or member. The advice need not set forth the underlying analysis or rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter, endorsements, and report of investigation are forwarded with the pretrial advice. In addition, the pretrial advice should include when appropriate: a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; any recommendations for disposition of the case by commanders or others who have forwarded the charges; and the recommendation of the Article 32 preliminary hearing officer. However, there is no legal requirement to include such information, and failure to do so is not error. Whatever matters are included in the advice, whether or not they are required, should be accurate. Information which is incorrect or so incomplete as to be misleading may result in a determination that the advice is defective, necessitating appropriate relief. See R.C.M. 905(b)(1); 906(b)(3). The standard of proof to be applied in R.C.M. 406(b)(2) is probable cause. See R.C.M. 601(d)(1). Defects in the pretrial advice are not jurisdictional and are raised by pretrial motion. See R.C.M.905(b)(1) and its Discussion.
A copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial.
When in receipt of charges, a commander exercising general court-martial jurisdiction may:
See R.C.M. 401(c)(1) concerning dismissal of charges and the effect of dismissing charges.
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. A subordinate commander may not be required to take any specific action or to dispose of charges. See R.C.M. 104. See also paragraph 1d(2) of Part V. When appropriate, charges may be sent or returned to a subordinate commander for compliance with procedural requirements. See, for example, R.C.M. 303
(preliminary inquiry); R.C.M. 308 (notification to accused of charges).
See R.C.M. 401 (c)(2)(A) for guidance concerning forwarding charges to a superior.
See R.C.M. 601; 1302(c).
An investigation should be directed when it appears the charges are of such a serious nature that trial by general court-martial may be warranted. See R.C.M. 405. If an investigation of the subject matter already has been conducted. See R.C.M. 405(b).
See Article 22 and R.C.M. 504(b)(1) concerning who may exercise general court-martial jurisdiction. See R.C.M. 601 concerning referral of charges. See R.C.M. 306 and 401 concerning other dispositions.
When in receipt of charges the trial of which the commander exercising general court-martial jurisdiction finds would probably be inimical to the prosecution of a war or harmful to national security, that commander, unless otherwise prescribed by regulations of the Secretary concerned, shall determine whether trial is warranted and, if so, whether the security considerations involved are paramount to trial. As the commander finds appropriate, the commander may dismiss the charges, authorize trial of them, or forward them to a superior authority.
In time of war, charges may be forwarded to the Secretary concerned for disposition under Article 43(e). Under Article 43(e), the Secretary may take action suspending the statute of limitations in time of war.
Except in capital cases, general courts-martial shall consist of a military judge and not less than five members, or of the military judge alone if requested and approved under R.C.M. 903.
In all capital cases, general courts-martial shall consist of a military judge and no fewer than 12 members, unless 12 members are not reasonably available because of physical conditions or military exigencies. If 12 members are not reasonably available, the convening authority shall detail the next lesser number of reasonably available members under 12, but in no event fewer than five. In such a case, the convening authority shall state in the convening order the reasons why 12 members are not reasonably available.
Special courts-martial shall consist of:
Not less than three members;
A military judge and not less than three members; or
A military judge alone if a military judge is detailed and if requested and approved under R.C.M. 903.
See R.C.M. 1301(a) concerning composition of summary courts-martial.
Military trial and defense counsel shall be detailed to general and special courts-martial. Assistant trial and associate or assistant defense counsel may be detailed.
Other personnel, such as reporters, interpreters, bailiffs, clerks, escorts, and orderlies, may be detailed or employed as appropriate but need not be detailed by the convening authority personally.
The convening authority may direct that a reporter not be used in special courts-martial. Regulations of the Secretary concerned may also require or restrict the use of reporters in special courts-martial.
The members detailed to a court-martial shall be those persons who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. Each member shall be on active duty with the armed forces and shall be:
A commissioned officer;
A warrant officer, except when the accused is a commissioned officer; or
An enlisted person if the accused is an enlisted person and has made a timely request under R.C.M. 503(a)(2).
Retired members of any Regular component and members of Reserve components of the armed forces are eligible to serve as members if they are on active duty. Members of the National Oceanic and Atmospheric Administration and of the Public Health Service are eligible to serve as members when assigned to and serving with an armed force. The Public Health Service includes both commissioned and warrant officers. The National Oceanic and Atmospheric Administration includes only commissioned officers.
The members of a court-martial shall determine whether the accused is proved guilty and, if necessary, adjudge a proper sentence, based on the evidence and in accordance with the instructions of the military judge. Each member has an equal voice and vote with other members in deliberating upon and deciding all matters submitted to them, except as otherwise specifically provided in these rules. No member may use rank or position to influence another member. No member of a court-martial may have access to or use in any open or closed session this Manual, reports of decided cases, or any other reference material, except the president of a special court-martial without a military judge may use such materials in open session.
Members should avoid any conduct or communication with the military judge, witnesses, or other trial personnel during the trial which might present an appearance of partiality. Except as provided in these rules, members should not discuss any part of a case with anyone until the matter is submitted to them for determination. Members should not on their own visit or conduct a view of the scene of the crime and should not investigate or gather evidence of the offense. Members should not form an opinion on any matter in connection with a case until that matter has been submitted to them for determination.
The president of a court-martial shall be the detailed member senior in rank then serving.
The president shall have the same duties as the other members and shall also:
Preside over closed sessions of the members of the court-martial during their deliberations;
Speak for the members of the court-martial when announcing the decision of the members or requesting instructions from the military judge; and
In a special court-martial without a military judge, perform the duties assigned by this Manual to the military judge except as otherwise expressly provided.
A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member. In addition, the military judge of a general court-martial shall be designated for such duties by the Judge Advocate General or the Judge Advocate General's designee, certified to be qualified for duty as a military judge of a general court-martial, and assigned and directly responsible to the Judge Advocate General or the Judge Advocate General's designee. The Secretary concerned may prescribe additional qualifications for military judges in special courts-martial. As used in this subsection "military judge" does not include the president of a special court-martial without a military judge.
See R.C.M. 801 for description of some of the general duties of the military judge. Military judges assigned as general court-martial judges may perform duties in addition to the primary duty of judge of a general court-martial only when such duties are assigned or approved by the Judge Advocate General, or a designee, of the service of which the military judge is a member. Similar restrictions on other duties which a military judge in special courts-martial may perform may be prescribed in regulations of the Secretary concerned.
Only persons certified under Article 27(b) as competent to perform duties as counsel in courts-martial by the Judge Advocate General of the armed force of which the counsel is a member may be detailed as defense counsel or associate defense counsel in general or special courts-martial or as trial counsel in general courts-martial.
To be certified by the Judge Advocate General concerned under Article 27(b), a person must be a member of the bar of a Federal court or the highest court of a State. The Judge Advocate General concerned may establish additional requirements for certification. When the accused has individual military or civilian defense counsel, the detailed counsel is "associate counsel" unless excused from the case. See R.C.M. 506(b)(3).
Any commissioned officer may be detailed as trial counsel in special courts-martial, or as assistant trial counsel or assistant defense counsel in general or special courts-martial. The Secretary concerned may establish additional qualifications for such counsel.
Individual military or civilian defense counsel who represents an accused in a court-martial shall be:
A member of the bar of a Federal court or of the bar of the highest court of a State; or
If not a member of such a bar, a lawyer who is authorized by a recognized licensing authority to practice law and is found by the military judge to be qualified to represent the accused upon a showing to the satisfaction of the military judge that the counsel has appropriate training and familiarity with the general principles of criminal law which apply in a court-martial.
In making such a determination-particularly in the case of civilian defense counsel who are members only of a foreign bar-the military judge also should inquire into:
the availability of the counsel at times at which sessions of the court-martial have been scheduled;
whether the accused wants the counsel to appear with military defense counsel;
the familiarity of the counsel with spoken English;
practical alternatives for discipline of the counsel in the event of misconduct;
whether foreign witnesses are expected to testify with whom the counsel may more readily communicate than might military counsel; and
whether ethnic or other similarity between the accused and the counsel may facilitate communication and confidence between the accused and civilian defense counsel.
No person shall act as trial counsel or assistant trial counsel or, except when expressly requested by the accused, as defense counsel or associate or assistant defense counsel in any case in which that person is or has been:
The accuser;
An investigating officer;
A military judge; or
A member. No person who has acted as counsel for a party may serve as counsel for an opposing party in the same case.
In the absence of evidence to the contrary, it is presumed that a person who, between referral and trial of a case, has been detailed as counsel for any party to the court-martial to which the case has been referred, has acted in that capacity.
The trial counsel shall prosecute cases on behalf of the United States and shall cause the record of trial of such cases to be prepared. Under the supervision of trial counsel an assistant trial counsel may perform any act or duty which trial counsel may perform under law, regulation, or custom of the service.
Immediately upon receipt of referred charges, trial counsel should cause a copy of the charges to be served upon accused. See R.C.M. 602. Trial counsel should: examine the charge sheet and allied papers for completeness and correctness; correct (and initial) minor errors or obvious mistakes in the charges but may not without authority make any substantial changes (see R.C.M. 603); and assure that the information about the accused on the charge sheet and any evidence of previous convictions are accurate.
Trial counsel must communicate with a represented accused only through the accused's defense counsel. However, see R.C.M. 602. Trial counsel may not attempt to induce an accused to plead guilty or surrender other important rights.
Trial counsel should: ensure that a suitable room, a reporter (if authorized), and necessary equipment and supplies are provided for the court-martial; obtain copies of the charges and specifications and convening orders for each member and all personnel of the court-martial; give timely notice to the members, other parties, other personnel of the court-martial, and witnesses for the prosecution and (if known) defense of the date, time, place, and uniform of the meetings of the court-martial; ensure that any person having custody of the accused is also informed; comply with applicable discovery rules (see R.C.M. 701); prepare to make a prompt, full, and orderly presentation of the evidence at trial; consider the elements of proof of each offense charged, the burden of proof of guilt and the burdens of proof on motions which may be anticipated, and the Military Rules of Evidence; secure for use at trial such legal texts as may be available and necessary to sustain the prosecution's contentions; arrange for the presence of witnesses and evidence in accordance with R.C.M. 703; prepare to make an opening statement of the prosecution's case (see R.C.M. 913); prepare to conduct the examination and cross-examination of witnesses; and prepare to make final argument on the findings and, if necessary, on sentencing (see R.C.M. 919; 1001(g)).
Trial counsel should bring to the attention of the military judge any substantial irregularity in the proceedings. Trial counsel should not allude to or disclose to the members any evidence not yet admitted or reasonably expected to be admitted in evidence or intimate, transmit, or purport to transmit to the military judge or members the views of the convening authority or others as to the guilt or innocence of the accused, an appropriate sentence, or any other matter within the discretion of the court-martial.
Trial counsel must promptly provide written notice of the findings and sentence adjudged to the convening authority or a designee, the accused's immediate commander, and (if applicable) the officer in charge of the confinement facility (see R.C.M. 1101(a)), and supervise the preparation, authentication, and distribution of copies of the record as required by these rules and regulations of the Secretary concerned (see R.C.M. 1103; 1104).
An assistant trial counsel may act in that capacity only under the supervision of the detailed trial counsel. Responsibility for trial of a case may not devolve to an assistant not qualified to serve as trial counsel. Unless the contrary appears, all acts of an assistant trial counsel are presumed to have been done by the direction of the trial counsel. An assistant trial counsel may not act in the absence of trial counsel at trial in a general court-martial unless the assistant has the qualifications required of a trial counsel. See R.C.M. 805(c).
Defense counsel shall represent the accused in matters under the code and these rules arising from the offenses of which the accused is then suspected or charged. Under the supervision of the defense counsel an associate or assistant defense counsel may perform any act or duty which a defense counsel may perform under law, regulation, or custom of the service.
Defense counsel should promptly explain to the accused the general duties of the defense counsel and inform the accused of the rights to request individual military counsel of the accused's own selection, and of the effect of such a request, and to retain civilian counsel. If the accused wants to request individual military counsel, the defense counsel should immediately inform the convening authority through trial counsel and, if the request is approved, serve as associate counsel if the accused requests and the convening authority permits. Unless the accused directs otherwise, military counsel will begin preparation of the defense immediately after being detailed without waiting for approval of a request for individual military counsel or retention of civilian counsel. See R.C.M. 506.
Defense counsel must: guard the interests of the accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the accused; disclose to the accused any interest defense counsel may have in connection with the case, any disqualification, and any other matter which might influence the accused in the selection of counsel; represent the accused with undivided fidelity and may not disclose the accused's secrets or confidences except as the accused may authorize (see also Mil. R. Evid. 502). A defense counsel designated to represent two or more co-accused in a joint or common trial or in allied cases must be particularly alert to conflicting interests of those accused. Defense counsel should bring such matters to the attention of the military judge so that the accused's understanding and choice may be made a matter of record. See R.C.M. 901(d)(4)(D). Defense counsel must explain to the accused: the elections available as to composition of the court-martial and assist the accused to make any request necessary to effect the election (see R.C.M. 903); the right to plead guilty or not guilty and the meaning and effect of a plea of guilty; the rights to introduce evidence, to testify or remain silent, and to assert any available defense; and the rights to present evidence during sentencing and the rights of the accused to testify under oath, make an unsworn statement, and have counsel make a statement on behalf of the accused. These explanations must be made regardless of the intentions of the accused as to testifying and pleading. Defense counsel should try to obtain complete knowledge of the facts of the case before advising the accused, and should give the accused a candid opinion of the merits of the case.
Defense counsel may have the assistance of trial counsel in obtaining the presence of witnesses and evidence for the defense. See R.C.M. 703. Defense counsel should consider the elements of proof of the offenses alleged and the pertinent rules of evidence to ensure that evidence that the defense plans to introduce is admissible and to be prepared to object to inadmissible evidence offered by the prosecution. Defense counsel should: prepare to make an opening statement of the defense case
(see R.C.M. 913(b)); and prepare to examine and cross-examine witnesses, and to make final argument on the findings and, if necessary, on sentencing
(see R.C.M. 919; 1001(g)).
Defense counsel should represent and protect the interests of the accused at trial. When a trial proceeds in the absence of the accused, defense counsel must continue to represent the accused.
(i) Deferment of confinement.
If the accused is sentenced to confinement, the defense counsel must explain to the accused the right to request the convening authority to defer service of the sentence to confinement and assist the accused in making such a request if the accused chooses to make one. See R.C.M. 1101(c).
(ii) Examination of the record; appellate brief.
The defense counsel should in any case examine the record for accuracy and note any errors in it. This notice may be forwarded for attachment to the record. See R.C.M. 1103(b)(3)(C). See also R.C.M. 1103(i)(1)(B).
(iii) Submission of matters.
If the accused is convicted, the defense counsel may submit to the convening authority matters for the latter's consideration in deciding whether to approve the sentence or to disapprove any findings. See R.C.M. 1105. Defense counsel should discuss with the accused the right to submit matters to the convening authority and the powers of the convening authority in taking action on the case. Defense counsel may also submit a brief of any matters counsel believes should be considered on further review.
(iv) Appellate rights.
Defense counsel must explain to the accused the rights to appellate review that apply in the case, and advise the accused concerning the exercise of those rights. If the case is subject to review by the Court of Criminal Appeals, defense counsel should explain the powers of that court and advise the accused of the right to be represented by counsel before it. See R.C.M. 1202 and 1203. Defense counsel should also explain the possibility of further review by the Court of Appeals for the Armed Forces and the Supreme Court. See R.C.M. 1204 and 1205. If the case may be examined in the office of the Judge Advocate General under Article 69(a), defense counsel should explain the nature of such review to the accused. See R.C.M. 1201(b)(1). Defense counsel must explain the consequences of waiver of appellate review, when applicable, and, if the accused elects to waive appellate review, defense counsel will assist in preparing the waiver. See R.C.M. 1110. If the accused waives appellate review, or if it is not available, defense counsel should explain that the case will be reviewed by a judge advocate and should submit any appropriate matters for consideration by the judge advocate. _ See_ R.C.M. 1112. The accused should be advised of the right to apply to the Judge Advocate General for relief under Article 69(b) when such review is available. See R.C.M. 1201(b)(3).
(v) Examination of post-trial recommendation.
When the post-trial recommendation is served on defense counsel, defense counsel should examine it and reply promptly in writing, noting any errors or omissions. Failure to note defects in the recommendation waives them. See R.C.M. 1106(f).
Associate or assistant counsel may act in that capacity only under the supervision and by the general direction of the defense counsel. A detailed defense counsel becomes associate defense counsel when the accused has individual military or civilian counsel and detailed counsel is not excused. Although associate counsel acts under the general supervision of the defense counsel, associate defense counsel may act without such supervision when circumstances require. See, for example, R.C.M. 805(c). An assistant defense counsel may do this only if such counsel has the qualifications to act as defense counsel. Responsibility for trial of a case may not devolve upon an assistant who is not qualified to serve as defense counsel. An assistant defense counsel may not act in the absence of the defense counsel at trial unless the assistant has the qualifications required of a defense counsel. See also R.C.M. 805. Unless the contrary appears, all acts of an assistant or associate defense counsel are presumed to have been done under the supervision of the defense counsel.
The qualifications of interpreters and reporters may be prescribed by the Secretary concerned. Any person who is not disqualified under subsection
(e)(2) of this rule may serve as escort, bailiff, clerk, or orderly, subject to removal by the military judge.
In addition to any disqualifications which may be prescribed by the Secretary concerned, no person shall act as interpreter, reporter, escort, bailiff, clerk, or orderly in any case in which that person is or has been in the same case:
The accuser;
A witness;
An investigating officer;
Counsel for any party; or
A member of the court-martial or of any earlier court-martial of which the trial is a rehearing or new or other trial.
In addition to such other duties as the Secretary concerned may prescribe, the following persons may perform the following duties.
Interpreters shall interpret for the court-martial or for an accused who does not speak or understand English.
The accused also may retain an unofficial interpreter without expense to the United States.
Reporters shall record the proceedings and testimony and shall transcribe them so as to comply with the requirements for the record of trial as prescribed in these rules.
Other personnel detailed for the assistance of the court-martial shall have such duties as may be imposed by the military judge.
The Secretary concerned may prescribe regulations for the payment of allowances, expenses, per diem, and compensation of reporters and interpreters.
See R.C.M. 807 regarding oaths for reporters, interpreters, and escorts.
Any person who discovers that a person detailed to a court-martial is disqualified or lacks the qualifications specified by this rule shall cause a report of the matter to be made before the court-martial is first in session to the convening authority or, if discovered later, to the military judge.
The convening authority shall detail qualified persons as members for courts-martial.
The following persons are subject to challenge under R.C.M. 912(f) and should not be detailed as members: any person who is, in the same case, an accuser, witness, preliminary hearing officer, or counsel for any party; any person who, in the case of a new trial, other trial, or rehearing, was a member of any court-martial which previously heard the case; any person who is junior to the accused, unless this is unavoidable; an enlisted member from the same unit as the accused; or any person who is in arrest or confinement.
An enlisted accused may, before assembly, request orally on the record or in writing that enlisted persons serve as members of the general or special court-martial to which that accused's case has been or will be referred. If such a request is made, an enlisted accused may not be tried by a court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total number of members unless eligible enlisted members cannot be obtained because of physical conditions or military exigencies. If the appropriate number of enlisted members cannot be obtained, the court-martial may be assembled, and the trial may proceed without them, but the convening authority shall make a detailed written explanation why enlisted members could not be obtained which must be appended to the record of trial.
When such a request is made, the convening authority should:
Detail an appropriate number of enlisted members to the court-martial and, if appropriate, relieve an appropriate number of commissioned or warrant officers previously detailed;
Withdraw the charges from the court-martial to which they were originally referred and refer them to a court-martial which includes the proper proportion of enlisted members; or
Advise the court-martial before which the charges are then pending to proceed in the absence of enlisted members if eligible enlisted members cannot be detailed because of physical conditions or military exigencies. See also R.C.M. 1103(b)(2)(D)(iii).
A convening authority may detail as members of general and special courts-martial persons under that convening authority's command or made available by their commander, even if those persons are members of an armed force different from that of the convening authority or accused.
Concurrence of the proper commander may be oral and need not be shown by the record of trial. Members should ordinarily be of the same armed force as the accused. When a court-martial composed of members of different armed forces is selected, at least a majority of the members should be of the same armed force as the accused unless exigent circumstances make it impractical to do so without manifest injury to the service.
The military judge shall be detailed, in accordance with regulations of the Secretary concerned, by a person assigned as a military judge and directly responsible to the Judge Advocate General or the Judge Advocate General's designee. The authority to detail military judges may be delegated to persons assigned as military judges. If authority to detail military judges has been delegated to a military judge, that military judge may detail himself or herself as military judge for a court-martial.
The order detailing a military judge shall be reduced to writing and included in the record of trial or announced orally on the record at the court-martial. The writing or announcement shall indicate by whom the military judge was detailed. The Secretary concerned may require that the order be reduced to writing.
A military judge from one armed force may be detailed to a court-martial convened in a different armed force, a combatant command or joint command when permitted by the Judge Advocate General of the armed force of which the military judge is a member. The Judge Advocate General may delegate authority to make military judges available for this purpose.
Trial and defense counsel, assistant trial and defense counsel, and associate defense counsel shall be detailed in accordance with regulations of the Secretary concerned. If authority to detail counsel has been delegated to a person, that person may detail himself or herself as counsel for a court-martial.
The order detailing a counsel shall be reduced to writing and included in the record of trial or announced orally on the record at the court-martial. The writing or announcement shall indicate by whom the counsel was detailed. The Secretary concerned may require that the order be reduced to writing.
A person from one armed force may be detailed to serve as counsel in a court-martial in a different armed force, a combatant command or joint command when permitted by the Judge Advocate General of the armed force of which the counsel is a member. The Judge Advocate General may delegate authority to make persons available for this purpose.
A court-martial is created by a convening order of the convening authority.
Unless otherwise limited by superior competent authority, general courts-martial may be convened by persons occupying positions designated in Article 22(a) and by any commander designated by the Secretary concerned or empowered by the President.
The authority to convene courts-martial is independent of rank and is retained as long as the convening authority remains a commander in one of the designated positions. The rule by which command devolves are found in regulations of the Secretary concerned.
Unless otherwise limited by superior competent authority, special courts-martial may be convened by persons occupying positions designated in Article 23(a) and by commanders designated by the Secretary concerned.
See the discussion of subsection (b)(1) of this rule. Persons authorized to convene general courts-martial may also convene special courts-martial.
For purposes of Articles 23 and 24, a command or unit is "separate or detached" when isolated or removed from the immediate disciplinary control of a superior in such manner as to make its commander the person held by superior commanders primarily responsible for discipline. "Separate or detached" is used in a disciplinary sense and not necessarily in a tactical or physical sense. A subordinate joint command or joint task force is ordinarily considered to be "separate or detached."
The power of a commander of a separate or detached unit to convene courts-martial, like that of any other commander, may be limited by superior competent authority.
If a commander is in doubt whether the command is separate or detached, the matter shall be determined:
In the Army or the Air Force, by the officer exercising general court-martial jurisdiction over the command; or
In the Naval Service or Coast Guard, by the flag or general officer in command or the senior officer present who designated the detachment; or
In a combatant command or joint command, by the officer exercising general court-martial jurisdiction over the command.
See R.C.M. 1302(a).
See the discussion under subsection (b)(1) of this rule.
The power to convene courts-martial may not be delegated.
An accuser may not convene a general or special court-martial for the trial of the person accused.
See also Article 1(9); 307(a); 601(c). However, see R.C.M. 1302(b) (accuser may convene a summary court-martial).
A convening authority junior in rank to an accuser may not convene a general or special court-martial for the trial of the accused unless that convening authority is superior in command to the accuser. A convening authority junior in command to an accuser may not convene a general or special court-martial for the trial of the accused.
When a commander who would otherwise convene a general or special court-martial is disqualified in a case, the charges shall be forwarded to a superior competent authority for disposition. That authority may personally dispose of the charges or forward the charges to another convening authority who is superior in rank to the accuser, or, if in the same chain of command, who is superior in command to the accuser.
See also R.C.M. 401(c).
A convening order for a general or special court-martial shall designate the type of court-martial and detail the members and may designate where the court-martial will meet. If the convening authority has been designated by the Secretary concerned, the convening order shall so state.
See Appendix 6 for a suggested format for a convening order.
A convening order for a summary court-martial shall designate that it is a summary court-martial and detail the summary court-martial, and may designate where the court-martial will meet. If the convening authority has been designated by the Secretary concerned, the convening order shall so state.
See also R.C.M. 1302(c).
Additional matters to be included in convening orders may be prescribed by the Secretary concerned.
The convening authority shall ensure that an appropriate location and facilities for courts-martial are provided.
Subject to this rule, the members, military judge, and counsel may be changed by an authority competent to detail such persons. Members also may be excused as provided in subsections (c)(1)(B)(ii) and (c)(2)(A) of this rule.
Changes of the members of the court-martial should be kept to a minimum. If extensive changes are necessary and no session of the court-martial has begun, it may be appropriate to withdraw the charges from one court-martial and refer them to another. See R.C.M. 604.
When new persons are added as members or counsel or when substitutions are made as to any members or counsel or the military judge, such persons shall be detailed in accordance with R.C.M. 503. An order changing the members of the court-martial, except one which excuses members without replacement, shall be reduced to writing before authentication of the record of trial.
When members or counsel have been excused and the excusal is not reduced to writing, the excusal should be announced on the record. A member who has been temporarily excused need not be formally reappointed to the court-martial.
After assembly no member may be excused, except:
By the convening authority for good cause shown on the record;
By the military judge for good cause shown on the record; or
As a result of challenge under R.C.M. 912.
New members may be detailed after assembly only when, as a result of excusals under subsection (c)(2)(A) of this rule, the number of members of the court-martial is reduced below a quorum, or the number of enlisted members, when the accused has made a timely written request for enlisted members, is reduced below one-third of the total membership.
An authority competent to detail trial counsel may change the trial counsel and any assistant trial counsel at any time without showing cause.
Before an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail defense counsel may excuse or change such counsel without showing cause.
After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel may excuse or change such counsel only:
Under R.C.M. 506(b)(3);
Upon request of the accused or application for withdrawal by such counsel under R.C.M. 506(c); or
For other good cause shown on the record.
Before the court-martial is assembled, the military judge may be changed by an authority competent to detail the military judge, without cause shown on the record.
After the court-martial is assembled, the military judge may be changed by an authority competent to detail the military judge only when, as a result of disqualification under R.C.M. 902 or for good cause shown, the previously detailed military judge is unable to proceed.
For purposes of this rule, "good cause" includes physical disability, military exigency, and other extraordinary circumstances which render the member, counsel, or military judge unable to proceed with the court-martial within a reasonable time. "Good cause" does not include temporary inconveniences which are incident to normal conditions of military life.
The accused has the right to be represented before a general or special court-martial by civilian counsel if provided at no expense to the Government, and either by the military counsel detailed under Article 27 or military counsel of the accused's own selection, if reasonably available. The accused is not entitled to be represented by more than one military counsel.
See R.C.M. 502(d)(3) as to qualifications of civilian counsel or individual military counsel.
Subject to this subsection, the Secretary concerned shall define "reasonably available." While so assigned, the following persons are not reasonably available to serve as individual military counsel because of the nature of their duties or positions:
A general or flag officer;
A trial or appellate military judge;
A trial counsel;
An appellate defense or government counsel;
A principal legal advisor to a command, organization, or agency and, when such command, organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor;
An instructor or student at a service school or academy:
A student at a college or university;
A member of the staff of the Judge Advocate General of the Army, Navy, or Air Force, the Chief Counsel of the Coast Guard, or the Director, Judge Advocate Division, Headquarters, Marine Corps. The Secretary concerned may determine other persons to be not reasonably available because of the nature or responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. A person who is a member of an armed force different from that of which the accused is a member shall be reasonably available to serve as individual military counsel for such accused to the same extent as that person is available to serve as individual military counsel for an accused in the same armed force as the person requested. The Secretary concerned may prescribe circumstances under which exceptions may be made to the prohibitions in this subsection when merited by the existence of an attorney-client relationship regarding matters relating to a charge in question. However, if the attorney-client relationship arose solely because the counsel represented the accused on review under Article 70, this exception shall not apply.
Subject to this subsection, the Secretary concerned shall prescribe procedures for determining whether a requested person is "reasonably available" to act as individual military counsel. Requests for an individual military counsel shall be made by the accused or the detailed defense counsel through the trial counsel to the convening authority. If the requested person is among those not reasonably available under subsection (b)(1) of this rule or under regulations of the Secretary concerned, the convening authority shall deny the request and notify the accused, unless the accused asserts that there is an existing attorney-client relationship regarding a charge in question or that the person requested will not, at the time of the trial or investigation for which requested, be among those so listed as not reasonably available. If the accused's request makes such a claim, or if the person is not among those so listed as not reasonably available, the convening authority shall forward the request to the commander or head of the organization, activity, or agency to which the requested person is assigned. That authority shall make an administrative determination whether the requested person is reasonably available in accordance with the procedure prescribed by the Secretary concerned. This determination is a matter within the sole discretion of that authority. An adverse determination may be reviewed upon request of the accused through that authority to the next higher commander or level of supervision, but no administrative review may be made which requires action at the departmental or higher level.
If the accused is represented by individual military counsel, detailed defense counsel shall normally be excused. The authority who detailed the defense counsel, as a matter of discretion, may approve a request from the accused that detailed defense counsel shall act as associate counsel. The action of the authority who detailed the counsel is subject to review only for abuse of discretion.
A request under subsection (b)(3) should be considered in light of the general statutory policy that the accused is not entitled to be represented by more than one military counsel. Among the factors that may be considered in the exercise of discretion are the seriousness of the case, retention of civilian defense counsel, complexity of legal or factual issues, and the detail of additional trial counsel. See R.C.M. 905(b)(6) and 906(b)(2) as to motions concerning denial of a request for individual military counsel or retention of detailed counsel as associate counsel.
Except as otherwise provided in R.C.M. 505(d)(2) and subsection
(b)(3) of this rule, defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown.
The accused may expressly waive the right to be represented by counsel and may thereafter conduct the defense personally. Such waiver shall be accepted by the military judge only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding. The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure.
Subject to the discretion of the military judge, the accused may have present and seated at the counsel table for purpose of consultation persons not qualified to serve as counsel under R.C.M. 502.
See also Mil. R. Evid. 615 if the person is a potential witness in the case.
Referral is the order of a convening authority that charges against an accused will be tried by a specified court-martial.
Referral of charges requires three elements: a convening authority who is authorized to convene the court-martial and is not disqualified
(see R.C.M. 601(b) and (c)); preferred charges which have been received by the convening authority for disposition (see R.C.M. 307 as to preferral of charges and Chapter IV as to disposition); and a court-martial convened by that convening authority or a predecessor (see R.C.M. 504). If trial would be warranted but would be detrimental to the prosecution of a war or inimical to national security, see R.C.M. 401(d) and 407(b).
Any convening authority may refer charges to a court-martial convened by that convening authority or a predecessor, unless the power to do so has been withheld by superior competent authority.
See R.C.M. 306(a), 403, 404, 407, and 504. The convening authority may be of any command, including a command different from that of the accused, but as a practical matter the accused must be subject to the orders of the convening authority or otherwise under the convening authority's control to assure the appearance of the accused at trial. The convening authority's power over the accused may be based upon agreements between the commanders concerned.
An accuser may not refer charges to a general or special court-martial.
Convening authorities are not disqualified from referring charges by prior participation in the same case except when they have acted as accuser. For a definition of "accuser," see Article 1(9). A convening authority who is disqualified may forward the charges and allied papers for disposition by competent authority superior in rank or command. See R.C.M. 401(c) concerning actions which the superior may take. See R.C.M. 1302 for rules relating to convening summary courts-martial.
If the convening authority finds or is advised by a judge advocate that there are reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it, and that the specification alleges an offense, the convening authority may refer it. The finding may be based on hearsay in whole or in part. The convening authority or judge advocate may consider information from any source and shall not be limited to the information reviewed by any previous authority, but a case may not be referred to a general court-martial except in compliance with subsection (d)(2) of this rule. The convening authority or judge advocate shall not be required before charges are referred to resolve legal issues, including objections to evidence, which may arise at trial.
For a discussion of selection among alternative dispositions, see R.C.M. 306. The convening authority is not obliged to refer all charges which the evidence might support. The convening authority should consider the options and considerations under R.C.M. 306 in exercising the discretion to refer.
The convening authority may not refer a specification under a charge to a general court-martial unless-
There has been substantial compliance with the pretrial investigation requirements of R.C.M. 405; and
The convening authority has received the advice of the staff judge advocate required under R.C.M. 406. These requirements may be waived by the accused.
See R.C.M. 201(f)(2)(C) concerning limitations on referral of capital offenses to special courts-martial. See R.C.M. 103(3) for the definition of a capital offense. See R.C.M. 1301(c) concerning limitations on the referral of certain cases to summary courts-martial.
Referral shall be by the personal order of the convening authority. The convening authority may include proper instructions in the order.
Referral is ordinarily evidenced by an indorsement on the charge sheet. Although the indorsement should be completed on all copies of the charge sheet, only the original must be signed. The signature may be that of a person acting by the order or direction of the convening authority. In such a case the signature element must reflect the signer's authority. If, for any reason, charges are referred to a court-martial different from that to which they were originally referred, the new referral is ordinarily made by a new indorsement attached to the original charge sheet. The previous indorsement should be lined out and initialed by the person signing the new referral. The original indorsement should not be obliterated. See also R.C.M. 604. If the only officer present in a command refers the charges to a summary court-martial and serves as the summary court-martial under R.C.M. 1302, the indorsement should be completed with the additional comments, "only officer present in the command." The convening authority may instruct that the charges against the accused be tried with certain other charges against the accused. See subsection
In the discretion of the convening authority, two or more offenses charged against an accused may be referred to the same court-martial for trial, whether serious or minor offenses or both, regardless whether related. Additional charges may be joined with other charges for a single trial at any time before arraignment if all necessary procedural requirements concerning the additional charges have been complied with. After arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused.
Ordinarily all known charges should be referred to a single court-martial.
Allegations against two or more accused may be referred for joint trial if the accused are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such accused may be charged in one or more specifications together or separately, and every accused need not be charged in each specification. Related allegations against two or more accused which may be proved by substantially the same evidence may be referred to a common trial.
A joint offense is one committed by two or more persons acting together with a common intent. Joint offenses may be referred for joint trial, along with all related offenses against each of the accused. A common trial may be used when the evidence of several offenses committed by several accused separately is essentially the same, even though the offenses were not jointly committed. See R.C.M. 307(c)(5) Discussion. Convening authorities should consider that joint and common trials may be complicated by procedural and evidentiary rules.
The trial counsel detailed to the court-martial to which charges have been referred for trial shall cause to be served upon each accused a copy of the charge sheet. In time of peace, no person may, over objection, be brought to trial-including an Article 39(a) session-before a general court-martial within a period of five days after service of charges, or before a special court-martial within a period of three days after service of charges. In computing these periods, the date of service of charges and the date of trial are excluded; holidays and Sundays are included.
Trial counsel should comply with this rule immediately upon receipt of the charges. Whenever after service the charges are amended or changed the trial counsel must give notice of the changes to the defense counsel. Whenever such amendments or changes add a new party, a new offense, or substantially new allegations, the charge sheet so amended or changed must be served anew. See also R.C.M. 603. Service may be made only upon the accused; substitute service upon defense counsel is insufficient. The trial counsel should promptly inform the defense counsel when charges have been served. If the accused has questions when served with charges, the accused should be told to discuss the matter with defense counsel.
Minor changes in charges and specifications are any except those which add a party, offenses, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged.
Minor changes include those necessary to correct inartfully drafted or redundant specifications; to correct a misnaming of the accused; to allege the proper article; or to correct other slight errors. Minor charges also include those which reduce the seriousness of an offense, as when the value of an allegedly stolen item in a larceny specification is reduced, or when a desertion specification is amended to allege only unauthorized absence.
Any person forwarding, acting upon, or prosecuting charges on behalf of the United States except a preliminary hearing officer appointed under R.C.M. 405 may make minor changes to charges or specifications before arraignment.
Charges forwarded or referred for trial should be free from defects of form and substance. Minor errors may be corrected and the charge may be redrafted without being sworn anew by the accuser. Other changes should be signed and sworn to by an accuser. All changes in the charges should be initialed by the person who makes them. A trial counsel acting under this provision ordinarily should consult with the convening authority before making any changes which, even though minor, change the nature or seriousness of the offense.
After arraignment the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced.
Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.
If there has been a major change or amendment over the accused's objection to a charge already referred, a new referral is necessary. Similarly, in the case of a general court-martial, a new investigation under R.C.M. 405 will be necessary if the charge as amended or changed was not covered in the prior investigation. If the substance of the charge or specification as amended or changed has not been referred or, in the case of a general court-martial, investigated, a new referral and, if appropriate, investigation are necessary. When charges are re-referred, they must be served anew under R.C.M. 602.
The convening authority or a superior competent authority may for any reason cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced.
Charges which are withdrawn from a court-martial should be dismissed
(see R.C.M. 401(c)(1)) unless it is intended to refer them anew promptly or to forward them to another authority for disposition. Charges should not be withdrawn from a court-martial arbitrarily or unfairly to an accused. See also subsection (b) of this rule. Some or all charges and specifications may be withdrawn. In a joint or common trial the withdrawal may be limited to charges against one or some of the accused. Charges which have been properly referred to a court-martial may be withdrawn only by the direction of the convening authority or a superior competent authority in the exercise of that officer's independent judgment. When directed to do so by the convening authority or a superior competent authority, trial counsel may withdraw charges or specifications by lining out the affected charges or specifications, renumbering remaining charges or specifications as necessary, and initialing the changes. Charges and specifications withdrawn before commencement of trial will not be brought to the attention of the members. When charges or specifications are withdrawn after they have come to the attention of the members, the military judge must instruct them that the withdrawn charges or specifications may not be considered for any reason.
Charges which have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity.
See also R.C.M. 915 (Mistrial). When charges which have been withdrawn from a court-martial are referred to another court-martial, the reasons for the withdrawal and later referral should be included in the record of the later court-martial, if the later referral is more onerous to the accused. Therefore, if further prosecution is contemplated at the time of the withdrawal, the reasons for the withdrawal should be included in or attached to the record of the earlier proceeding. Improper reasons for withdrawal include an intent to interfere with the free exercise by the accused of constitutional rights or rights provided under the code, or with the impartiality of a court-martial. A withdrawal is improper if it was not directed personally and independently by the convening authority or by a superior competent authority. Whether the reason for a withdrawal is proper, for purposes of the propriety of a later referral, depends in part on the stage in the proceedings at which the withdrawal takes place. Before arraignment, there are many reasons for a withdrawal which will not preclude another referral. These include receipt of additional charges, absence of the accused, reconsideration by the convening authority or by a superior competent authority of the seriousness of the offenses, questions concerning the mental capacity of the accused, and routine duty rotation of the personnel constituting the court-martial. Charges withdrawn after arraignment may be referred to another court-martial under some circumstances. For example, it is permissible to refer charges which were withdrawn pursuant to a pretrial agreement if the accused fails to fulfill the terms of the agreement. See R.C.M. 705. Charges withdrawn after some evidence on the general issue of guilty is introduced may be re-referred only under the narrow circumstances described in the rule.
Except as otherwise provided in subsections (f) and (g)(2) of this rule, the trial counsel shall provide the following information or matters to the defense-
As soon as practicable after service of charges under R.C.M. 602, the trial counsel shall provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide copies, permit the defense to inspect:
Any paper which accompanied the charges when they were referred to the court-martial, including papers sent with charges upon a rehearing or new trial;
The convening order and any amending orders; and
Any sworn or signed statement relating to an offense charged in the case which is in the possession of the trial counsel.
After service of charges, upon request of the defense, the Government shall permit the defense to inspect:
Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused; and
Any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to the trial counsel, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial.
For specific rules concerning certain mental examinations of the accused or third party patients, see R.C.M. 701(f), R.C.M. 706, Mil. R. Evid. 302 and Mil. R. Evid. 513.
Before the beginning of trial on the merits the trial counsel shall notify the defense of the names and addresses of the witnesses the trial counsel intends to call:
In the prosecution case-in-chief; and
To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when trial counsel has received timely notice under subsection
(b)(1) or (2) of this rule.
Such notice should be in writing except when impracticable.
Before arraignment the trial counsel shall notify the defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is aware and which the trial counsel may offer on the merits for any purpose, including impeachment, and shall permit the defense to inspect such records when they are in the trial counsel's possession.
Upon request of the defense the trial counsel shall:
Permit the defense to inspect such written material as will be presented by the prosecution at the presentencing proceedings; and
Notify the defense of the names and addresses of the witnesses the trial counsel intends to call at the presentencing proceedings under R.C.M. 1001(b).
The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to:
Negate the guilt of the accused of an offense charged;
Reduce the degree of guilt of the accused of an offense charged; or
Reduce the punishment.
In addition to the matters required to be disclosed under subsection
(evidence seized from accused), 321(c)(1) (evidence based on lineups), 507
(identity of informants), 612 (memoranda used to refresh recollection), and 613(a) (prior inconsistent statements). Requirements for notice of intent to use certain evidence are found in: Mil. R. Evid. 201A(b)
(judicial notice of foreign law), 301(c)(2) (immunized witnesses), 304(d)(2)
(notice of intent to use undisclosed confessions), 304(f) (testimony of accused for limited purpose on confession), 311(d)(2)(B) (notice of intent to use undisclosed evidence seized), 311(f) (testimony of accused for limited purpose on seizures), 321(c)(2)(B) (notice of intent to use undisclosed line-up evidence), 321(e) (testimony of accused for limited purpose of line-ups), 412(c)(1) and (2) (intent of defense to use evidence of sexual misconduct by a victim); 505(h) (intent to disclose classified information), 506(h) (intent to disclose privilege government information), and 609(b) (intent to impeach with conviction over 10 years old).
Except as otherwise provided in subsections (f) and (g)(2) of this rule, the defense shall provide the following information to the trial counsel-
Before the beginning of trial on the merits, the defense shall notify the trial counsel of the names and addresses of all witnesses, other than the accused, whom the defense intends to call during the defense case in chief, and provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.
Upon request of the trial counsel, the defense shall also
Provide the trial counsel with the names and addresses of any witnesses whom the defense intends to call at the presentencing proceedings under R.C.M. 1001(c); and
Permit the trial counsel to inspect any written material that will be presented by the defense at the presentencing proceeding.
Discussion
Such notice shall be in writing except when impracticable. See R.C.M. 701(f) for statements that would not be subject to disclosure.
The defense shall notify the trial counsel before the beginning of trial on the merits of its intent to offer the defense of alibi, innocent ingestion, or lack of mental responsibility, or its intent to introduce expert testimony as to the accused's mental condition. Such notice by the defense shall disclose, in the case of an alibi defense, the place or places at which the defense claims the accused to have been at the time of the alleged offense, and, in the case of an innocent ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witnesses upon whom the accused intends to rely to establish any such defenses.
Such notice should be in writing except when impracticable. See R.C.M. 916(k) concerning the defense of lack of mental responsibility. See R.C.M. 706 concerning inquiries into the mental responsibility of the accused. See Mil. R. Evid. 302 concerning statements by the accused during such inquiries. If the defense needs more detail as to the time, date, or place of the offense to comply with this rule, it should request a bill of particulars. See R.C.M. 906(b)(6).
If the defense requests disclosure under subsection (a)(2)(A) of this rule, upon compliance with such request by the Government, the defense, on request of the trial counsel, shall permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief at trial.
If the defense requests disclosure under subsection (a)(2)(B) of this rule, upon compliance with such request by the Government, the defense, on request of trial counsel, shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R. Evid. 513) permit the trial counsel to inspect any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, that are within the possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial or that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness' testimony.
If an intention to rely upon a defense under subsection (b)(2) of this rule is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not, in any court-martial, admissible against the accused who gave notice of the intention.
In addition to the matters covered in subsection (b) of this rule, defense counsel is required to give notice or disclose evidence under certain Military Rules of Evidence: Mil. R. Evid. 201A(b) (judicial notice of foreign law), 304(f) (testimony by the accused for a limited purpose in relation to a confession), 311(b) (same, search), 321(e) (same, lineup), 412(c)(1) and
The fact that a witness' name is on a list of expected or intended witnesses provided to an opposing party, whether required by this rule or not, shall not be ground for comment upon a failure to call the witness.
If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this rule, that party shall promptly notify the other party or the military judge of the existence of the additional evidence or material.
Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence, subject to the limitations in subsection (e)(1) of this rule. No party may unreasonably impede the access of another party to a witness or evidence.
Nothing in this rule shall be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule shall require the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel's assistants and representatives.
The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.
Upon a sufficient showing the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the military judge may permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge. If the military judge grants relief after such an ex parte showing, the entire text of the party's statement shall be sealed and attached to the record of trial as an appellate exhibit. Such material may be examined by reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.
If at any time during the court-martial it is brought to the attention of the military judge that a party has failed to comply with this rule, the military judge may take one or more of the following actions:
Order the party to permit discovery;
Grant a continuance;
Prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and
Enter such other order as is just under the circumstances. This rule shall not limit the right of the accused to testify in the accused's behalf.
Factors to be considered in determining whether to grant an exception to exclusion under subsection (3)(C) include: the extent of disadvantage that resulted from a failure to disclose; the reason for the failure to disclose; the extent to which later events mitigated the disadvantage caused by the failure to disclose; and any other relevant factors. The sanction of excluding the testimony of a defense witness should be used only upon finding that the defense counsel's failure to comply with this rule was willful and motivated by a desire to obtain a tactical advantage or to conceal a plan to present fabricated testimony. Moreover, the sanction of excluding the testimony of a defense witness should only be used if alternative sanctions could not have minimized the prejudice to the Government. Before imposing this sanction, the military judge must weigh the defendant's right to compulsory process against the countervailing public interests, including
As used in this rule "inspect" includes the right to photograph and copy.
A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at a preliminary hearing under Article 32 or a court-martial. A victim's declination to testify at a preliminary hearing or a victim's declination to submit to pretrial interviews shall not, by themselves, be considered exceptional circumstances. In accordance with subsection (b) of this rule below, the convening authority or military judge may order a deposition of a victim only if it is determined, by a preponderance of the evidence, that the victim will not be available to testify at court-martial.
A deposition is the out-of-court testimony of a witness under oath in response to questions by the parties, which is reduced to writing or recorded on videotape or audiotape or similar material. A deposition taken on oral examination is an oral deposition, and a deposition taken on written interrogatories is a written deposition. Written interrogatories are questions, prepared by the prosecution, defense, or both, which are reduced to writing before submission to a witness whose testimony is to be taken by deposition. The answers, reduced to writing and properly sworn to, constitute the deposition testimony of the witness. Note that under subsection (i) of this rule a deposition may be taken by agreement of the parties without necessity of an order. A deposition may be taken to preserve the testimony of a witness who is likely to be unavailable at the investigation under Article 32 (see R.C.M. 405(g)) or at the time of trial
(see R.C.M. 703(b)). Part of all or a deposition, so far as otherwise admissible under the Military Rules of Evidence, may be used on the merits or on an interlocutory question as substantive evidence if the witness is unavailable under Mil. R. Evid. 804(a) except that a deposition may be admitted in a capital case only upon offer by the defense. See Mil. R. Evid. 804(b)(1). In any case, a deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. See Mil. R. Evid. 613. If only a part of a deposition is offered in evidence by a party, an adverse party may require the proponent to offer all which is relevant to the part offered, and any party may offer other parts. See Mil. R. Evid. 106. A deposition which is transcribed is ordinarily read to the court-martial by the party offering it. See also subsection
(g)(3) of this rule. The transcript of a deposition may not be inspected by the members. Objections may be made to testimony in a written deposition in the same way that they would be if the testimony were offered through the personal appearance of a witness. Part or all of a deposition so far as otherwise admissible under the Military Rules of Evidence may be used in presentencing proceedings as substantive evidence as provided in R.C.M. 1001. DD Form 456 (Interrogatories and Deposition) may be used in conjunction with this rule.
A convening authority who has the charges for disposition or, after referral, the convening authority or the military judge may order that a deposition be taken on request of a party.
At any time after charges have been preferred, any party may request in writing that a deposition be taken.
A copy of the request and any accompanying papers ordinarily should be served on the other parties when the request is submitted.
A request for a deposition shall include:
The name and address of the person whose deposition is requested, or, if the name of the person is unknown, a description of the office or position of the person;
A statement of the matters on which the person is to be examined; and
Whether an oral or written deposition is requested.
A request for a written deposition may not be approved without the consent of the opposing party except when the deposition is ordered solely in lieu of producing a witness for sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be adequately served by a written deposition.
A request for an oral deposition may be approved without the consent of the opposing party.
The authority who acts on the request shall promptly inform the requesting party of the action on the request and, if the request is denied, the reasons for denial.
Failure to review before the military judge a request for a deposition denied by a convening authority waives further consideration of the request.
When a request for a deposition is approved, the convening authority shall detail a judge advocate certified under Art. 27(b) to serve as deposition officer. When the appointment of a judge advocate as deposition officer is not practicable, the convening authority may detail an impartial commissioned officer or appropriate civil officer authorized to administer oaths, not the accuser, to serve as deposition officer. If the deposition officer is not a judge advocate, an impartial judge advocate certified under Art. 27(b) shall be made available to provide legal advice to the deposition officer.
See Article 49(c). When a deposition will be at a point distant from the command, an appropriate authority may be requested to make available an officer to serve as deposition officer.
If charges have not yet been referred to a court-martial when a request to take a deposition is approved, the convening authority who directed the taking of the deposition shall ensure that counsel qualified as required under R.C.M. 502(d) are assigned to represent each party.
The counsel who represents the accused at a deposition ordinarily will form an attorney-client relationship with the accused which will continue through a later court-martial. _ See_ R.C.M. 506. If the accused has formed an attorney-client relationship with military counsel concerning the charges in question, ordinarily that counsel should be appointed to represent the accused.
The convening authority may give instructions not inconsistent with this rule to the deposition officer.
Such instruction may include the time and place for taking the deposition.
The party at whose request a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition and the name and address of each person to be examined. On motion of a party upon whom the notice is served the deposition officer may for cause shown extend or shorten the time or change the place for taking the deposition, consistent with any instructions from the convening authority.
In accordance with this rule, and subject to any instructions under subsection (d)(3) of this rule, the deposition officer shall:
Arrange a time and place for taking the deposition and, in the case of an oral deposition, notify the party who requested the deposition accordingly;
Arrange for the presence of any witness whose deposition is to be taken in accordance with the procedures for production of witnesses and evidence under R.C.M. 703(e);
Maintain order during the deposition and protect the parties and witnesses from annoyance, embarrassment, or oppression;
Administer the oath to each witness, the reporter, and interpreter, if any;
In the case of a written deposition, ask the questions submitted by counsel to the witness;
Cause the proceedings to be recorded so that a verbatim record is made or may be prepared;
Record, but not rule upon, objections or motions and the testimony to which they relate;
Authenticate the record of the deposition and forward it to the authority who ordered the deposition; and
Report to the convening authority any substantial irregularity in the proceeding.
When any unusual problem, such as improper conduct by counsel or a witness, prevents an orderly and fair proceeding, the deposition officer should adjourn the proceedings and inform the convening authority. The authority who ordered the deposition should forward copies to the parties.
At an oral deposition, the accused shall have the rights to:
(b)_ the accused is disruptive within the meaning of R.C.M. 804(b)(2); or (c) the deposition is ordered in lieu of production of a witness on sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused; and
Each witness giving an oral deposition shall be examined under oath. The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The Government shall make available to each accused for examination and use at the taking of the deposition any statement of the witness which is in the possession of the United States and to which the accused would be entitled at the trial.
As to objections, _ see_ subsections (f)(7) and (h) of this rule. As to production of prior statements of witnesses, see R.C.M. 914; Mil. R. Evid. 612, 613. A sample oath for a deposition follows. "You (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?"
The accused shall have the right to be represented by counsel as provided in R.C.M. 506 for the purpose of taking a written deposition, except when the deposition is taken for use at a summary court-martial.
No party has a right to be present at a written deposition.
The party requesting a written deposition shall submit to opposing counsel a list of written questions to be asked of the witness. Opposing counsel may examine the questions and shall be allowed a reasonable time to prepare cross-interrogatories and objections, if any.
The interrogatories and cross-interrogatories should be sent to the deposition officer by the party who requested the deposition. See subsection (h)(3) of this rule concerning objections.
The deposition officer shall swear the witness, read each question presented by the parties to the witness, and record each response. The testimony of the witness shall be recorded on videotape, audiotape, or similar material or shall be transcribed. When the testimony is transcribed, the deposition shall, except when impracticable, be submitted to the witness for examination. The deposition officer may enter additional matters then stated by the witness under oath. The deposition shall be signed by the witness if the witness is available. If the deposition is not signed by the witness, the deposition officer shall record the reason. The certificate of authentication shall then be executed.
In the discretion of the authority who ordered the deposition, a deposition may be recorded by a reporter or by other means including videotape, audiotape, or sound film. In the discretion of the military judge, depositions recorded by videotape, audiotape, or sound film may be played for the court-martial or may be transcribed and read to the court-martial.
A deposition read in evidence or one that is played during a court-martial, is recorded and transcribed by the reporter in the same way as any other testimony. The deposition need not be included in the record of trial.
A failure to object prior to the deposition to the taking of the deposition on grounds which may be corrected if the objection is made prior to the deposition waives such objection.
Objections to questions, testimony, or evidence at an oral deposition and the grounds for such objection shall be stated at the time of taking such deposition. If an objection relates to a matter which could have been corrected if the objection had been made during the deposition, the objection is waived if not made at the deposition.
A party may show that an objection was made during the deposition but not recorded, but, in the absence of such evidence, the transcript of the deposition governs.
Objections to any question in written interrogatories shall be served on the party who proposed the question before the interrogatories are sent to the deposition officer or the objection is waived. Objections to answers in a written deposition may be made at trial.
Nothing in this rule shall preclude the taking of a deposition without cost to the United States, orally or upon written questions, by agreement of the parties.
Subject to Article 49, nothing in this rule shall preclude the use of a deposition at the court-martial by agreement of the parties unless the military judge forbids its use for good cause.
The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence, subject to the limitations set forth in R.C.M. 701(e)(1), including the benefit of compulsory process.
See also R.C.M. 801(c) concerning the opportunity of the court-martial to obtain witnesses and evidence.
Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary. With the consent of both the accused and Government, the military judge may authorize any witness to testify via remote means. Over a party's objection, the military judge may authorize any witness to testify on interlocutory questions via remote means or similar technology if the practical difficulties of producing the witness outweigh the significance of the witness' personal appearance (although such testimony will not be admissible over the accused's objection as evidence on the ultimate issue of guilt). Factors to be considered include, but are not limited to: the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the interlocutory proceeding that may be caused by the production of the witness; the willingness of the witness to testify in person; the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training; and, for child witnesses, the traumatic effect of providing in-court testimony.
See Mil. R. Evid. 401 concerning relevance. Relevant testimony is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is stipulated as a fact. The procedures for receiving testimony via remote means and the definition thereof are contained in R.C.M. 914B. An issue may arise as both an interlocutory question and a question that bears on the ultimate issue of guilt. See R.C.M. 801(e)(5). In such circumstances, this rule authorizes the admission of testimony by remote means or similar technology over the accused's objection only as evidence on the interlocutory question. In most instances, testimony taken over a party's objection will not be admissible as evidence on the question that bears on the ultimate issue of guilt; however, there may be certain limited circumstances where the testimony is admissible on the ultimate issue of guilt. Such determinations must be made based upon the relevant rules of evidence.
Each party is entitled to the production of a witness whose testimony on sentencing is required under R.C.M. 1001(e).
The trial counsel shall obtain the presence of witnesses whose testimony the trial counsel considers relevant and necessary for the prosecution.
The defense shall submit to the trial counsel a written list of witnesses whose production by the Government the defense requests.
A list of witnesses whose testimony the defense considers relevant and necessary on the merits or on an interlocutory question shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity.
A list of witnesses wanted for presentencing proceedings shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the reasons why the witness' personal appearance will be necessary under the standards set forth in R.C.M. 1001(e).
A list of witnesses under this subsection shall be submitted in time reasonably to allow production of each witness on the date when the witness' presence will be necessary. The military judge may set a specific date by which such lists must be submitted. Failure to submit the name of a witness in a timely manner shall permit denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.
The trial counsel shall arrange for the presence of any witness listed by the defense unless the trial counsel contends that the witness' production is not required under this rule. If the trial counsel contends that the witness' production is not required by this rule, the matter may be submitted to the military judge. If the military judge grants a motion for a witness, the trial counsel shall produce the witness or the proceedings shall be abated.
When significant or unusual costs would be involved in producing witnesses, the trial counsel should inform the convening authority, as the convening authority may elect to dispose of the matter by means other than a court-martial. See R.C.M. 906(b)(7). See also R.C.M. 905(j).
When the employment at Government expense of an expert is considered necessary by a party, the party shall, in advance of employment of the expert, and with notice to the opposing party, submit a request to the convening authority to authorize the employment and to fix the compensation for the expert. The request shall include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment. A request denied by the convening authority may be renewed before the military judge who shall determine whether the testimony of the expert is relevant and necessary, and, if so, whether the Government has provided or will provide an adequate substitute. If the military judge grants a motion for employment of an expert or finds that the Government is required to provide a substitute, the proceedings shall be abated if the Government fails to comply with the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those to which entitled under subsection (e)(2)(D) of this rule.
See Mil. R. Evid. 702, 706.
The attendance of a military witness may be obtained by notifying the commander of the witness of the time, place, and date the witness' presence is required and requesting the commander to issue any necessary orders to the witness.
When military witnesses are located near the court-martial, their presence can usually be obtained through informal coordination with them and their commander. If the witness is not near the court-martial and attendance would involve travel at government expense, or if informal coordination is inadequate, the appropriate superior should be requested to issue the necessary order. If practicable, a request for the attendance of a military witness should be made so that the witness will have at least 48 hours notice before starting to travel to attend the court-martial. The attendance of persons not on active duty should be obtained in the manner prescribed in subsection (e)(2) of this rule.
The presence of witnesses not on active duty may be obtained by subpoena.
A subpoena is not necessary if the witness appears voluntarily at no expense to the United States. Civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in courts-martial as an incident of their employment. Appropriate travel orders may be issued for this purpose. A subpoena may not be used to compel a civilian to travel outside the United States and its territories. A witness must be subject to United States jurisdiction to be subject to a subpoena. Foreign nationals in a foreign country are not subject to subpoena. Their presence may be obtained through cooperation of the host nation.
A subpoena shall state the command by which the proceeding is directed, and the title, if any, of the proceeding. A subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command the person to whom it is directed to produce books, papers, documents, data, or other objects or electronically stored information designated therein at the proceeding or at an earlier time for inspection by the parties. A subpoena issued for a preliminary hearing pursuant to Article 32 shall not command any person to attend or give testimony at an Article 32 preliminary hearing.
A subpoena may not be used to compel a witness to appear at an examination or interview before trial, but a subpoena may be used to obtain witnesses for a deposition or a court of inquiry. In accordance with subsection (f)(4)(B) of this rule, a subpoena duces tecum to produce books, papers, documents, data, or other objects or electronically stored information for pretrial investigation pursuant to Article 32 may be issued, following the convening authority's order directing such pretrial investigation, by either the investigating officer appointed under R.C.M. 405(d)(1) or the counsel representing the United States. A subpoena normally is prepared, signed, and issued in duplicate on the official forms. See Appendix 7 for an example of a subpoena with certificate of service (DD Form 453) and a Travel Order (DD Form 453-1).
The summary court-martial;
Detailed counsel for the government at an Article 32 preliminary hearing;
After referral to a court-martial, detailed trial counsel;
The president of a court of inquiry; or
An officer detailed to take a deposition.
the summary court-martial;
after referral to a court-martial, detailed trial counsel;
the president of a court of inquiry; or
an officer detailed to take a deposition.
A subpoena may be served by the person authorized by this rule to issue it, a United States Marshal, or any other person who is not less than 18 years of age. Service shall be made by delivering a copy of the subpoena to the person named and by providing to the person named travel orders and a means for reimbursement for fees and mileage as may be prescribed by the Secretary concerned, or in the case of hardship resulting in the subpoenaed witness's inability to comply with the subpoena absent initial government payment, by providing to the person named travel orders, fees, and mileage sufficient to comply with the subpoena in rules prescribed by the Secretary concerned.
If practicable, a subpoena should be issued in time to permit service at least 24 hours before the time the witness will have to travel to comply with the subpoena. Informal service. Unless formal service is advisable, the person who issued the subpoena may mail it to the witness in duplicate, enclosing a postage-paid envelope bearing a return address, with the request that the witness sign the acceptance of service on the copy and return it in the envelope provided. The return envelope should be addressed to the person who issued the subpoena. The person who issued the subpoena should include with it a statement to the effect that the rights of the witness to fees and mileage will not be impaired by voluntary compliance with the request and that a voucher for fees and mileage will be delivered to the witness promptly on being discharged from attendance. Formal service. Formal service is advisable whenever it is anticipated that the witness will not comply voluntarily with the subpoena. Appropriate fees and mileage must be paid or tendered. See Article 47. If formal service is advisable, the person who issued the subpoena must assure timely and economical service. That person may do so by serving the subpoena personally when the witness is in the vicinity. When the witness is not in the vicinity, the subpoena may be sent in duplicate to the commander of a military installation near the witness. Such commanders should give prompt and effective assistance, issuing travel orders for their personnel to serve the subpoena when necessary. Service should ordinarily be made by a person subject to the code. The duplicate copy of the subpoena must have entered upon it proof of service as indicated on the form and must be promptly returned to the person who issued the subpoena. If service cannot be made, the person who issued the subpoena must be informed promptly. A stamped, addressed envelope should be provided for these purposes. For purposes of this Rule, hardship is defined as any situation which would substantially preclude reasonable efforts to appear that could be solved by providing transportation or fees and mileage to which the witness is entitled for appearing at the hearing in question.
A subpoena requiring the attendance of a witness at a deposition, court-martial, or court of inquiry may be served at any place within the United States, it Territories, Commonwealths, or possessions.
In foreign territory, the attendance of civilian witnesses may be obtained in accordance with existing agreements or, in the absence of agreements, with principles of international law.
In occupied enemy territory, the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory.
If a person subpoenaed requests relief on grounds that compliance is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena be modified or withdrawn if appropriate.
The military judge or, if there is no military judge, the convening authority may, in accordance with this rule, issue a warrant of attachment to compel the attendance of a witness or production of documents.
Discussion
A warrant of attachment (DD Form 454) may be used when necessary to compel a witness to appear or produce evidence under this rule. A warrant of attachment is a legal order addressed to an official directing that official to have the person named in the order brought before a court. Subpoenas issued under R.C.M. 703 are Federal process and a person not subject to the code may be prosecuted in a Federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served. Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness's presence, testimony, or documents. The criminal complaint, prosecuted through the civilian Federal courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process. For subpoenas issued for a pretrial investigation pursuant to Article 32 under subsection (f)(4)(B), the general court-martial convening authority with jurisdiction over the case may issue a warrant of attachment to compel production of documents.
A warrant of attachment may be issued only upon probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that a means of reimbursement of fees and mileage was provided to the witness or advanced to the witness in cases of hardship, that the witness is material, that the witness refused or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse is reasonably apparent for the witness's failure to appear.
A warrant of attachment shall be written. All documents in support of the warrant of attachment shall be attached to the warrant, together with the charge sheet and convening orders.
A warrant of attachment may be executed by a United States marshal or such other person who is not less than 18 years of age as the authority issuing the warrant may direct. Only such nondeadly force as may be necessary to bring the witness before the court-martial or other proceeding may be used to execute the warrant. A witness attached under this rule shall be brought before the court-martial or proceeding without delay and shall testify as soon as practicable and be released.
Discussion
In executing a warrant of attachment, no more force than necessary to bring the witness to the court-martial, deposition, or court of inquiry may be used.
For purposes of subsection (e)(2)(G) of this rule "military judge" does not include a summary court-martial or the president of a special court-martial without a military judge.
Each party is entitled to the production of evidence which is relevant and necessary.
Relevance is defined by Mil. R. Evid. 401. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is stipulated as a fact. The discovery and introduction of classified or other government information is controlled by Mil. R. Evid. 505 and 506.
The procedures in subsection (c) of this rule shall apply to a determination of what evidence will be produced, except that any defense request for the production of evidence shall list the items of evidence to be produced and shall include a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence.
Evidence under the control of the Government may be obtained by notifying the custodian of the evidence of the time, place, and date the evidence is required and requesting the custodian to send or deliver the evidence.
Evidence not under the control of the government may be obtained by a subpoena issued in accordance with subsection (e)(2) of this rule. A subpoena duces tecum to produce books, papers, documents, data, or other objects or electronically stored information for a preliminary hearing pursuant to Article 32 may be issued, following the convening authority's order directing such preliminary hearing, by counsel for the government. A person in receipt of a subpoena duces tecum for an Article 32 hearing need not personally appear in order to comply with the subpoena.
The National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, § 542, amended Article 47 to allow the issuance of subpoenas duces tecum for Article 32 hearings. Although the amended language cites Article 32(b), this new subpoena power extends to documents subpoenaed by the investigating officer and counsel representing the United States, whether or not requested by the defense.
If the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena or order of production be withdrawn or modified. Subject to Mil. R. Evid. 505 and 506, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted.
Two types of immunity may be granted under this rule.
A person may be granted transactional immunity from trial by court-martial for one or more offenses under the code.
A person may be granted immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.
"Testimonial" immunity is also called "use" immunity. Immunity ordinarily should be granted only when testimony or other information from the person is necessary to the public interest, including the needs of good order and discipline, and when the person has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination. Testimonial immunity is preferred because it does not bar prosecution of the person for the offenses about which testimony or information is given under the grant of immunity. In any trial of a person granted testimonial immunity after the testimony or information is given, the Government must meet a heavy burden to show that it has not used in any way for the prosecution of that person the person's statements, testimony, or information derived from them. In many cases this burden makes difficult a later prosecution of such a person for any offense that was the subject of that person's testimony or statements. Therefore, if it is intended to prosecute a person to whom testimonial immunity has been or will be granted for offenses about which that person may testify or make statements, it may be necessary to try that person before the testimony or statements are given.
Nothing in this rule bars:
A later court-martial for perjury, false swearing, making a false official statement, or failure to comply with an order to testify; or
Use in a court-martial under subsection (b)(1) of this rule of testimony or statements derived from such testimony or statements.
A grant of immunity shall be written and signed by the convening authority who issues it. The grant shall include a statement of the authority under which it is made and shall identify the matters to which it extends.
A person who has received a valid grant of immunity from a proper authority may be ordered to testify. In addition, a servicemember who has received a valid grant of immunity may be ordered to answer questions by investigators or counsel pursuant to that grant. See Mil. R. Evid. 301(c). A person who refuses to testify despite a valid grant of immunity may be prosecuted for such refusal. Persons subject to the code may be charged under Article 134. See paragraph 108, Part IV. A grant of immunity removes the right to refuse to testify or make a statement on self-incrimination grounds. It does not, however, remove other privileges against disclosure of information. See Mil. R. Evid., Section V. An immunity order or grant must not specify the contents of the testimony it is expected the witness will give. When immunity is granted to a prosecution witness, the accused must be notified in accordance with Mil. R. Evid. 301(c)(2).
Unless limited by superior competent authority, the decision to grant immunity is a matter within the sole discretion of the appropriate general court-martial convening authority. However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated, upon findings that:
The witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; and
The Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and
The witness' testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses.
Subject to such limitations as the Secretary concerned may prescribe, an accused and the convening authority may enter into a pretrial agreement in accordance with this rule.
The authority of convening authorities to refer cases to trial and approve pretrial agreements extends only to trials by courts-martial. To ensure that such actions do not preclude appropriate action by Federal civilian authorities in cases likely to be prosecuted in the United States District Courts, convening authorities shall ensure that appropriate consultation under the "Memorandum of Understanding Between the Departments of Justice and Defense Relating to the Investigation and Prosecution of Crimes Over Which the Two Departments Have Concurrent Jurisdiction " has taken place prior to trial by court-martial or approval of a pretrial agreement in cases where such consultation is required. _ See_ Appendix 3.
A pretrial agreement may include:
A promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under this rule; and
A promise by the convening authority to do one or more of the following:
Refer the charges to a certain type of court-martial;
Refer a capital offense as noncapital;
Withdraw one or more charges or specifications from the court-martial;
A convening authority may withdraw certain specifications and/or charges from a court-martial and dismiss them if the accused fulfills the accused's promises in the agreement. Except when jeopardy has attached
(see R.C.M. 907(b)(2)(C)), such withdrawal and dismissal does not bar later reinstitution of the charges by the same or a different convening authority. A judicial determination that the accused breached the pretrial agreement is not required prior to reinstitution of withdrawn or dismissed specifications and/or charges. If the defense moves to dismiss the reinstituted specifications and/or charges on the grounds that the government remains bound by the terms of the pretrial agreement, the government will be required to prove, by a preponderance of the evidence, that the accused has breached the terms of the pretrial agreement. If the agreement is intended to grant immunity to an accused, see R.C.M. 704.
Have the trial counsel present no evidence as to one or more specifications or portions thereof; and
Take specified action on the sentence adjudged by the court-martial.
For example, the convening authority may agree to approve no sentence in excess of a specified maximum, to suspend all or part of a sentence, to defer confinement, or to mitigate certain forms of punishment into less severe forms.
A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.
A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of post-trial and appellate rights.
A pretrial agreement provision which prohibits the accused from making certain pretrial motions (see R.C.M. 905-907) may be improper.
Subject to subsection (c)(1)(A) of this rule, subsection (c)(1)(B) of this rule does not prohibit either party from proposing the following additional conditions:
A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to which a confessional stipulation will be entered;
A promise to testify as a witness in the trial of another person;
See R.C.M. 704(a)(2) concerning testimonial immunity. Only a general court-martial convening authority may grant immunity.
A promise to provide restitution;
A promise to conform the accused's conduct to certain conditions of probation before action by the convening authority as well as during any period of suspension of the sentence, provided that the requirements of R.C.M. 1109 must be complied with before an alleged violation of such terms may relieve the convening authority of the obligation to fulfill the agreement; and
A promise to waive procedural requirements such as the Article 32 preliminary hearing, the right to trial by court-martial composed of members or the right to request trial by military judge alone, or the opportunity to obtain the personal appearance of witnesses at sentencing proceedings.
Pretrial agreement negotiations may be initiated by the accused, defense counsel, trial counsel, the staff judge advocate, convening authority, or their duly authorized representatives. Either the defense or the government may propose any term or condition not prohibited by law or public policy. Government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel.
After negotiation, if any, under subsection (d)(1) of this rule, if the accused elects to propose a pretrial agreement, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. The proposed agreement shall be signed by the accused and defense counsel, if any. If the agreement contains any specified action on the adjudged sentence, such action shall be set forth on a page separate from the other portions of the agreement.
The first part of the agreement ordinarily contains an offer to plead guilty and a description of the offenses to which the offer extends. It must also contain a complete and accurate statement of any other agreed terms or conditions. For example, if the convening authority agrees to withdraw certain specifications, or if the accused agrees to waive the right to an Article 32 preliminary hearing, this should be stated. The written agreement should contain a statement by the accused that the accused enters it freely and voluntarily and may contain a statement that the accused has been advised of certain rights in connection with the agreement.
The convening authority may either accept or reject an offer of the accused to enter into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority. When the convening authority has accepted a pretrial agreement, the agreement shall be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign.
The convening authority should consult with the staff judge advocate or trial counsel before acting on an offer to enter into a pretrial agreement.
The accused may withdraw from a pretrial agreement at any time; however, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial agreement only as provided in R.C.M. 910(h) or 811(d), respectively.
Except in a special court-martial without a military judge, no member of a court-martial shall be informed of the existence of a pretrial agreement. In addition, except as provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a pretrial agreement, and any statements made by an accused in connection therewith, whether during negotiations or during a providence inquiry, shall not be otherwise disclosed to the members.
See also R.C.M. 910(f) (plea agreement inquiry).
If it appears to any commander who considers the disposition of charges, or to any preliminary hearing officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule.
See R.C.M. 909 concerning the capacity of the accused to stand trial and R.C.M. 916(k) concerning mental responsibility of the accused.
Before referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the convening authority before whom the charges are pending for disposition.
After referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the military judge. The convening authority may order such an inquiry after referral of charges but before beginning of the first session of the court-martial (including any Article 39(a) session) when the military judge is not reasonably available. The military judge may order a mental examination of the accused regardless of any earlier determination by the convening authority.
When a mental examination is ordered under subsection (b) of this rule, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. The board shall report as to the mental capacity or mental responsibility or both of the accused.
When a mental examination is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions:
At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term "severe mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)
What is the clinical psychiatric diagnosis?
Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?
Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense?
Other appropriate questions may also be included.
In addition to the requirements specified in subsection (c)(2) of this rule, the order to the board shall specify:
That upon completion of the board's investigation, a statement consisting only of the board's ultimate conclusions as to all questions specified in the order shall be submitted to the officer ordering the examination, the accused's commanding officer, the preliminary hearing officer, if any, appointed pursuant to Article 32 and to all counsel in the case, the convening authority, and, after referral, to the military judge;
That the full report of the board may be released by the board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the convening authority or, after referral of charges, by the military judge, except that a copy of the full report shall be furnished to the defense and, upon request, to the commanding officer of the accused; and
That neither the contents of the full report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any person not authorized to receive the full report, except pursuant to an order by the military judge.
Based on the report, further action in the case may be suspended, the charges may be dismissed by the convening authority, administrative action may be taken to discharge the accused from the service or, subject to Mil. R. Evid. 302, the charges may be tried by court-martial.
Additional examinations may be directed under this rule at any stage of the proceedings as circumstances may require.
No person, other than the defense counsel, accused, or, after referral of charges, the military judge may disclose to the trial counsel any statement made by the accused to the board or any evidence derived from such statement.
See Mil. R. Evid. 302.
The accused shall be brought to trial within 120 days after the earlier of:
Delay from the time of an offense to preferral of charges or the imposition of pretrial restraint is not considered for speedy trial purposes. See also Article 43 (statute of limitations). In some circumstances such delay may prejudice the accused and may result in dismissal of the charges or other relief. Offenses ordinarily should be disposed of promptly to serve the interests of good order and discipline. Priority shall be given to persons in arrest or confinement.
The imposition of restraint under R.C.M. 304(a)(2)-(4); or
Entry on active duty under R.C.M. 204.
The date of preferral of charges, the date on which pretrial restraint under R.C.M. 304 (a)(2)-(4) is imposed, or the date of entry on active duty under R.C.M. 204 shall not count for purpose of computing time under subsection
When charges are preferred at different times, accountability for each charge shall be determined from the appropriate date under subsection
If charges are dismissed, or if a mistrial is granted, a new 120-day time period under this rule shall begin on the date of dismissal or mistrial for cases in which there is no repreferral and cases in which the accused is in pretrial restraint. In all other cases, a new 120-day time period under the rule shall begin on the earlier of
the date of repreferral; or
the date of imposition of restraint under R.C.M. 304(a)(2)-(4).
If the accused is released from pretrial restraint for a significant period, the 120-day time period under this rule shall begin on the earlier of
the date of preferral of charges;
the date on which restraint under R.C.M. 304(a) (2)-(4) is reimposed; or
the date of entry on active duty under R.C.M. 204.
If notice of appeal under R.C.M. 908 is filed, a new 120-day time period under this rule shall begin, for all charges neither proceeded on nor severed under R.C.M. 908(b)(4), on the date of notice to the parties under R.C.M. 908(b)(8) or 908(c)(3), unless it is determined that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit. After the decision of the Court of Criminal Appeals under R.C.M. 908, if there is a further appeal to the Court of Appeals for the Armed Forces or, subsequently, to the Supreme Court, a new 120-day time period under this rule shall begin on the date the parties are notified of the final decision of the Court of Appeals for the Armed Forces, or, if appropriate, the Supreme Court.
If a rehearing is ordered or authorized by an appellate court, a new 120-day time period under this rule shall begin on the date that the responsible convening authority receives the record of trial and the opinion authorizing or directing a rehearing. An accused is brought to trial within the meaning of this rule at the time of arraignment under R.C.M. 904 or, if arraignment is not required (such as in the case of a sentence-only rehearing), at the time of the first session under R.C.M. 803.
If the accused is committed to the custody of the Attorney General for hospitalization as provided in R.C.M. 909(f), all periods of such commitment shall be excluded when determining whether the period in subsection (a) of this rule has run. If, at the end of the period of commitment, the accused is returned to the custody of the general court-martial convening authority, a new 120-day time period under this rule shall begin on the date of such return to custody.
All periods of time during which appellate courts have issued stays in the proceedings, or the accused is absent without authority, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General, shall be excluded when determining whether the period in subsection (a) of this rule has run. All other pretrial delays approved by a military judge or the convening authority shall be similarly excluded.
Prior to referral, all requests for pretrial delay, together with supporting reasons, will be submitted to the convening authority or, if authorized under regulations prescribed by the Secretary concerned, to a military judge for resolution. After referral, such requests for pretrial delay will be submitted to the military judge for resolution.
The decision to grant or deny a reasonable delay is a matter within the sole discretion of the convening authority or a military judge. This decision should be based on the facts and circumstances then and there existing. Reasons to grant a delay might, for example, include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause. Pretrial delays should not be granted ex parte, and when practicable, the decision granting the delay, together with supporting reasons and the dates covering the delay, should be reduced to writing. Prior to referral, the convening authority may delegate the authority to grant continuances to an Article 32 preliminary hearing officer.
Upon accused's timely motion to a military judge under R.C.M. 905 for speedy trial relief, counsel should provide the court a chronology detailing the processing of the case. This chronology should be made a part of the appellate record.
A failure to comply with this rule will result in dismissal of the affected charges, or, in a sentence-only rehearing, sentence relief as appropriate.
Dismissal will be with or without prejudice to the government's right to reinstitute court-martial proceedings against the accused for the same offense at a later date. The charges must be dismissed with prejudice where the accused has been deprived of his or her constitutional right to a speedy trial. In determining whether to dismiss charges with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case that lead to dismissal; the impact of a re-prosecution on the administration of justice; and any prejudice to the accused resulting from the denial of a speedy trial.
In determining whether or how much sentence relief is appropriate, the military judge shall consider, among others, each of the following factors: the length of the delay, the reasons for the delay, the accused's demand for speedy trial, and any prejudice to the accused from the delay. Any sentence relief granted will be applied against the sentence approved by the convening authority.
See subsection (c)(1) and the accompanying Discussion concerning reasons for delay and procedures for parties to request delay.
Except as provided in R.C.M. 910(a)(2), a plea of guilty which results in a finding of guilty waives any speedy trial issue as to that offense.
Speedy trial issues may also be waived by a failure to raise the issue at trial. See R.C.M. 905(e) and 907(b)(2).
The military judge is the presiding officer in a court-martial.
The military judge is responsible for ensuring that court-martial proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources. Unless otherwise specified, the president of a special court-martial without a military judge has the same authority and responsibility as a military judge. See R.C.M. 502(b)(2). The military judge shall:
The military judge should consult with counsel concerning the scheduling of sessions and the uniform to be worn. The military judge recesses or adjourns the court-martial as appropriate. Subject to R.C.M. 504(d)(1), the military judge may also determine the place of trial. See also R.C.M. 906(b)(11).
See also R.C.M. 804 and 806. Courts-martial should be conducted in an atmosphere which is conducive to calm and detached deliberation and determination of the issues presented and which reflects the seriousness of the proceedings.
See R.C.M. 102. The military judge may, within the framework established by the code and this Manual, prescribe the manner and order in which the proceedings may take place. Thus, the military judge may determine: when, and in what order, motions will be litigated (see R.C.M. 905); the manner in which voir dire will be conducted and challenges made (see R.C.M. 902(d) and 912); the order in which witnesses may testify (see R.C.M. 913; Mil. R. Evid. 611); the order in which the parties may argue on a motion or objection; and the time limits for argument (see R.C.M. 905; 919; 1001(g)). The military judge should prevent unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties' presentations or the appearance of partiality. The parties are entitled to a reasonable opportunity to properly present and support their contentions on any relevant matter.
Subject to subsection (e) of this rule, rule on all interlocutory questions and all questions of law raised during the court-martial; and
Instruct the members on questions of law and procedure which may arise.
The military judge instructs the members concerning findings
(see R.C.M. 920) and sentence (see R.C.M. 1005), and when otherwise appropriate. For example, preliminary instructions to the members concerning their duties and the duties of other trial participants and other matters are normally appropriate. See R.C.M. 913. Other instructions (for example, instructions on the limited purpose for which evidence has been introduced, see Mil. R. Evid. 105) may be given whenever the need arises.
The rights that a designee may exercise on behalf of a victim include the right to receive notice of public hearings in the case; the right to be reasonably heard at such hearings, if permitted by law; and the right to confer with counsel representing the government at such hearings. The designee may also be the custodial guardian of the child. When determining whom to appoint under this rule, the military judge may consider the following: the age and maturity, relationship to the victim, and physical proximity of any proposed designee; the costs incurred in effecting the appointment; the willingness of the proposed designee to serve in such a role; the previous appointment of a guardian by another court of competent jurisdiction; the preference of the victim; any potential delay in any proceeding that may be caused by a specific appointment; and any other relevant information.
In the event a case involves multiple victims who are entitled to notice under this rule, each victim is only entitled to notice relating to his or her own designated representative.
The military judge will determine if the appointment of a designee is required under this rule.
At the discretion of the military judge, victim(s), trial counsel, and the accused may be given the opportunity to recommend to the military judge individual(s) for appointment.
The military judge is not required to hold a hearing before determining whether a designation is required or making such an appointment under this rule.
If the military judge determines a hearing pursuant to Article 39(a), UCMJ, is necessary, the following shall be notified of the hearing and afforded the right to be present at the hearing: trial counsel, accused, and the victim(s).
The individual designated shall not be the accused.
At any time after appointment, a designee shall be excused upon request by the designee or a finding of good cause by the military judge.
If the individual appointed to assume the victim's rights is excused, the military judge shall appoint a successor consistent with this rule.
The term "victim of an offense under the UCMJ" means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ. "Good Cause" means adequate or reasonable grounds to believe that the individual appointed to assume the victim's rights is not acting or does not intend to act in the best interest of the victim.
The military judge may:
Subject to R.C.M. 108, promulgate and enforce rules of court.
Subject to R.C.M. 809, exercise contempt power.
The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.
The members may request and the military judge may require that a witness be recalled, or that a new witness be summoned, or other evidence produced. The members or military judge may direct trial counsel to make an inquiry along certain lines to discover and produce additional evidence. See also Mil. R. Evid. 614. In taking such action, the court-martial must not depart from an impartial role.
If during the trial there is evidence that the accused may be guilty of an untried offense not alleged in any specification before the court-martial, the court-martial shall proceed with the trial of the offense charged.
A report of the matter may be made to the convening authority after trial. If charges are preferred for an offense indicated by the evidence referred to in this subsection, no member of the court-martial who participated in the first trial should sit in any later trial. Such a member would ordinarily be subject to a challenge for cause. See R.C.M. 912. See also Mil. R. Evid. 105 concerning instructing the members on evidence of uncharged misconduct.
For purposes of this subsection "military judge" does not include the president of a special court-martial without a military judge.
Any ruling by the military judge upon a question of law, including a motion for a finding of not guilty, or upon any interlocutory question is final.
The military judge may change a ruling made by that or another military judge in the case except a previously granted motion for a finding of not guilty, at any time during the trial.
When required by this Manual or otherwise deemed appropriate by the military judge, interlocutory questions or questions of law shall be presented and decided at sessions held without members under R.C.M. 803.
Sessions without members are appropriate for interlocutory questions, questions of law, and instructions. See also Mil. R. Evid. 103; 304; 311; 321. Such sessions should be used to the extent possible consistent with the orderly, expeditious progress of the proceedings.
judge.
Any ruling by the president of a special court-martial without a military judge on any question of law other than a motion for a finding of not guilty is final.
Any ruling by the president of a special court-martial without a military judge on any interlocutory question of fact, including a factual issue of mental capacity of the accused, or on a motion for a finding of not guilty, is final unless objected to by a member.
The president of a special court-martial without a military judge may change a ruling made by that or another president in the case except a previously granted motion for a finding of not guilty, at any time during the trial.
Except as provided in R.C.M. 505 and 912, all members will be present at all sessions of a special court-martial without a military judge, including sessions at which questions of law or interlocutory questions are litigated. However, the president of a special court-martial without a military judge may examine an offered item of real or documentary evidence before ruling on its admissibility without exposing it to other members.
without a military judge which are subject to objection by a member.
The president of a special court-martial without a military judge shall determine whether a ruling is subject to objection.
When a ruling by the president of a special court-martial without a military judge is subject to objection, the president shall so advise the members and shall give such instructions on the issue as may be necessary to enable the members to understand the issue and the legal standards by which they will determine it if objection is made.
When a member objects to a ruling by the president of a special court-martial without a military judge which is subject to objection, the court-martial shall be closed, and the members shall vote orally, beginning with the junior in rank, and the question shall be decided by a majority vote. A tie vote on a motion for a finding of not guilty is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
The president of a special court-martial without a military judge may close the court-martial and consult with other members before ruling on a matter, when such ruling is subject to the objection of any member.
Questions of fact in an interlocutory question shall be determined by a preponderance of the evidence, unless otherwise stated in this Manual. In the absence of a rule in this Manual assigning the burden of persuasion, the party making the motion or raising the objection shall bear the burden of persuasion.
A ruling on an interlocutory question should be preceded by any necessary inquiry into the pertinent facts and law. For example, the party making the objection, motion, or request may be required to furnish evidence or legal authority in support of the contention. An interlocutory issue may have a different standard of proof. See, for example, Mil. R. Evid. 314(e)(5), which requires consent for a search to be proved by clear and convincing evidence. Most of the common motions are discussed in specific rules in this Manual, and the burden of persuasion is assigned therein. The prosecution usually bears the burden of persuasion
(see Mil. R. Evid. 304(e); 311(e); see also R.C.M. 905 through 907) once an issue has been raised. What "raises" an issue may vary with the issue. Some issues may be raised by a timely motion or objection. See, for example, Mil. R. Evid. 304(e). Others may not be raised until the defense has made an offer of proof or presented evidence in support of its position. See, for example, Mil. R. Evid. 311(g)(2). The rules in this Manual and relevant decisions should be consulted when a question arises as to whether an issue is raised, as well as which side has the burden of persuasion. The military judge or president of a special court-martial may require a party to clarify a motion or objection or to make an offer of proof, regardless of the burden of persuasion, when it appears that the motion or objection is vague, inapposite, irrelevant, or spurious.
Subsection (e) of this rule applies to the disposition of questions of law and interlocutory questions arising during trial except the question whether a challenge should be sustained.
Questions of law and interlocutory questions include all issues which arise during trial other than the findings (that is, guilty or not guilty), sentence, and administrative matters such as declaring recesses and adjournments. A question may be both interlocutory and a question of law. Challenges are specifically covered in R.C.M. 902 and 912. Questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law. Similarly, the legality of an act is normally a question of law. For example, the legality of an order when disobedience of an order is charged, the legality of restraint when there is a prosecution for breach of arrest, or the sufficiency of warnings before interrogation are normally questions of law. It is possible, however, for such questions to be decided solely upon some factual issue, in which case they would be questions of fact. For example, the question of what warnings, if any, were given by an interrogator to a suspect would be a factual question. A question is interlocutory unless the ruling on it would finally decide whether the accused is guilty. Questions which may determine the ultimate issue of guilt are not interlocutory. An issue may arise as both an interlocutory question and a question which may determine the ultimate issue of guilt. An issued is not purely interlocutory if an accused raises a defense or objection and the disputed facts involved determine the ultimate question of guilt. For example, if during a trial for desertion the accused moves to dismiss for lack of jurisdiction and presents some evidence that the accused is not a member of an armed force, the accused's status as a military person may determine the ultimate question of guilt because status is an element of the offense. If the motion is denied, the disputed facts must be resolved by each member in deliberation upon the findings. (The accused's status as a servicemember would have to be proved by a preponderance of the evidence to uphold jurisdiction, _ see_ R.C.M. 907, but beyond a reasonable doubt to permit a finding of guilty.) If, on the other hand, the accused was charged with larceny and presented the same evidence as to military status, the evidence would bear only upon amenability to trial and the issue would be disposed of solely as an interlocutory question. Interlocutory questions may be questions of fact or questions of law. This distinction is important because the president of a special court-martial without a military judge rules finally on interlocutory questions of law, but not on interlocutory questions of fact. On interlocutory questions of fact the president of a special court-martial without a military judge rules subject to the objection of any other member. On mixed questions of fact and law, rulings by the president are subject to objection by any member to the extent that the issue of fact can be isolated and considered separately.
All sessions involving rulings or instructions made or given by the military judge or the president of a special court-martial without a military judge shall be made a part of the record. All rulings and instructions shall be made or given in open session in the presence of the parties and the members, except as otherwise may be determined in the discretion of the military judge. For purposes of this subsection [R.C.M. 801(f)] "military judge" does not include the president of a special court-martial without a military judge.
See R.C.M. 808 and 1103 concerning preparation of the record of trial.
Failure by a party to raise defenses or objections or to make requests or motions which must be made at the time set by this Manual or by the military judge under authority of this Manual, or prior to any extension thereof made by the military judge, shall constitute waiver thereof, but the military judge for good cause shown may grant relief from the waiver.
After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.
Conferences between the military judge and counsel may be held when necessary before or during trial. The purpose of such conference is to inform the military judge of anticipated issues and to expeditiously resolve matters on which the parties can agree, not to litigate or decide contested issues. See subsection (c) below. No party may be compelled to resolve any matter at a conference. A conference may be appropriate in order to resolve scheduling difficulties, so that witnesses and members are not unnecessarily inconvenienced. Matters which will ultimately be in the military judge's discretion, such as conduct of voir dire, seating arrangements in the courtroom, or procedures when there are multiple accused may be resolved at a conference. Conferences may be used to advise the military judge of issues or problems, such as unusual motions or objections, which are likely to arise during trial. Occasionally it may be appropriate to resolve certain issues, in addition to routine or administrative matters, if this can be done with the consent of the parties. For example, a request for a witness which, if litigated and approved at trial, would delay the proceedings and cause expense or inconvenience, might be resolved at a conference. Note, however, that this could only be done by an agreement of the parties and not by a binding ruling of the military judge. Such a resolution must be included in the record. See subsection (b) below. A military judge may not participate in negotiations relating to pleas. See R.C.M. 705 and Mil. R. Evid. 410. No place or method is prescribed for conducting a conference. A conference may be conducted by remote means or similar technology consistent with the definition in R.C.M. 914B.
Conferences need not be made part of the record, but matters agreed upon at a conference shall be included in the record orally or in writing. Failure of a party to object at trial to failure to comply with this subsection shall waive this requirement.
No party may be prevented under this rule from presenting evidence or from making any argument, objection, or motion at trial.
The presence of the accused is neither required nor prohibited at a conference.
Normally the defense counsel may be presumed to speak for the accused.
No admissions made by the accused or defense counsel at a conference shall be used against the accused unless the admissions are reduced to writing and signed by the accused and defense counsel.
This rule shall not be invoked in the case of an accused who is not represented by counsel, or in special court-martial without a military judge.
A military judge who has been detailed to the court-martial may, under Article 39(a), after service of charges, call the court-martial into session without the presence of members. Such sessions may be held before and after assembly of the court-martial, and when authorized in these rules, after adjournment and before action by the convening authority. All such sessions are a part of the trial and shall be conducted in the presence of the accused, defense counsel, and trial counsel, in accordance with R.C.M. 804 and 805, and shall be made a part of the record. For purposes of this rule "military judge" does not include the president of a special court-martial without a military judge.
The purpose of Article 39(a) is "to give statutory sanction to pretrial and other hearings without the presence of the members concerning those matters which are amenable to disposition on either a tentative or final basis by the military judge." The military judge and members may, and ordinarily should, call the court-martial into session without members to ascertain the accused's understanding of the right to counsel, the right to request trial by military judge alone, or when applicable, enlisted members, and the accused's choices with respect to these matters; dispose of interlocutory matters; hear objections and motions; rule upon other matters that may legally be ruled upon by the military judge, such as admitting evidence; and perform other procedural functions which do not require the presence of members. See, for example, R.C.M. 901-910. The military judge may, if permitted by regulations of the Secretary concerned, hold the arraignment, receive pleas, and enter findings of guilty upon an accepted plea of guilty. Evidence may be admitted and process, including a subpoena, may be issued to compel attendance of witnesses and production of evidence at such sessions. See R.C.M. 703. Article 39(a) authorizes sessions only after charges have been referred to trial and served on the accused, but the accused has an absolute right to object, in time of peace, to any session until the period prescribed by Article 35 has run. See R.C.M. 804 concerning waiver by the accused of the right to be present. See also R.C.M. 802 concerning conferences.
The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted under Article 39(a), voir dire and challenges of members, the return of the findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule.
If authorized by the regulations of the Secretary concerned, the military judge may order the use of audiovisual technology, such as videoteleconferencing technology, between the parties and the military judge for purposes of Article 39(a) sessions. Use of such audiovisual technology will satisfy the "presence" requirement of the accused only when the accused has a defense counsel physically present at his location. Such technology may include two or more remote sites as long as all parties can see and hear each other.
The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present:
Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial); or
After being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
Express waiver. The accused may expressly waive the right to be present at trial proceedings. There is no right to be absent, however, and the accused may be required to be present over objection. Thus, an accused cannot frustrate efforts to identify the accused at trial by waiving the right to be present. The right to be present is so fundamental, and the Government's interest in the attendance of the accused so substantial, that the accused should be permitted to waive the right to be present only for good cause, and only after the military judge explains to the accused the right, and the consequences of foregoing it, and secures the accused's personal consent to proceeding without the accused. Voluntary absence. In any case the accused may forfeit the right to be present by being voluntarily absent after arraignment. "Voluntary absence" means voluntary absence from trial. For an absence from court-martial proceedings to be voluntary, the accused must have known of the scheduled proceedings and intentionally missed them. For example, although an accused servicemember might voluntarily be absent without authority, this would not justify proceeding with a court-martial in the accused's absence unless the accused was aware that the court-martial would be held during the period of the absence. An accused who is in military custody or otherwise subject to military control at the time of trial or other proceeding may not properly be absent from the trial or proceeding without securing the permission of the military judge on the record. The prosecution has the burden to establish by a preponderance of the evidence that the accused's absence from trial is voluntary. Voluntariness may not be presumed, but it may be inferred, depending on the circumstances. For example, it may be inferred, in the absence of evidence to the contrary, that an accused who was present when the trial recessed and who knew when the proceedings were scheduled to resume, but who nonetheless is not present when court reconvenes at the designated time, is absent voluntarily. Where there is some evidence that an accused who is absent for a hearing or trial may lack mental capacity to stand trial, capacity to voluntarily waive the right to be present for trial must be shown. See R.C.M. 909. Subsection
Afford the accused and defense counsel ample opportunity to consult throughout the proceedings. To this end, the accused should be held or otherwise required to remain in the vicinity of the trial, and frequent recesses permitted to allow counsel to confer with the accused.
Take such additional steps as may be reasonably practicable to enable the accused to be informed about the proceedings. Although not required, technological aids, such as closed-circuit television or audio transmissions, may be used for this purpose.
Afford the accused a continuing opportunity to return to the courtroom upon assurance of good behavior. To this end, the accused should be brought to the courtroom at appropriate intervals, and offered the opportunity to remain upon good behavior.
Ensure that the reasons for removal appear in the record.
Following a determination by the military judge that remote live testimony of a child is appropriate pursuant to Mil. R. Evid. 611(d)(3), the accused may elect to voluntarily absent himself from the courtroom in order to preclude the use of procedures described in R.C.M. 914A.
The accused's absence will be conditional upon his being able to view the witness' testimony from a remote location. Normally, transmission of the testimony will include a system that will transmit the accused's image and voice into the courtroom from a remote location as well as transmission of the child's testimony from the courtroom to the accused's location. A one-way transmission may be used if deemed necessary by the military judge. The accused will also be provided private, contemporaneous communication with his counsel. The procedures described herein shall be employed unless the accused has made a knowing and affirmative waiver of these procedures.
An election by the accused to be absent pursuant to subsection (c)(1) shall not otherwise affect the accused's right to be present at the remainder of the trial in accordance with this rule.
The accused shall be properly attired in the uniform or dress prescribed by the military judge. An accused servicemember shall wear the insignia of grade and may wear any decorations, emblems, or ribbons to which entitled. The accused and defense counsel are responsible for ensuring that the accused is properly attired; however, upon request, the accused's commander shall render such assistance as may be reasonably necessary to ensure that the accused is properly attired.
This subsection recognizes the right, as well as the obligation, of an accused servicemember to present a good military appearance at trial. An accused servicemember who refuses to present a proper military appearance before a court-martial may be compelled to do so.
Responsibility for maintaining custody or control of an accused before and during trial may be assigned, subject to R.C.M. 304 and 305, and subsection (c)(3) of this rule, under such regulations as the Secretary concerned may prescribe.
Physical restraint shall not be imposed on the accused during open sessions of the court-martial unless prescribed by the military judge.
No court-martial proceeding, except the deliberations of the members, may take place in the absence of the military judge, if detailed. If authorized by regulations of the Secretary concerned, for purposes of Article 39(a) sessions solely, the presence of the military judge at Article 39(a) sessions may be satisfied by the use of audiovisual technology, such as videoteleconferencing technology.
Unless trial is by military judge alone pursuant to a request by the accused, no court-martial proceeding may take place in the absence of any detailed member except: Article 39(a) sessions under R.C.M. 803; examination of members under R.C.M. 912(d); when the member has been excused under R.C.M. 505 or 912(f); or as otherwise provided in R.C.M. 1102. No general court-martial proceeding requiring the presence of members may be conducted unless at least five members are present, or in capital cases, at least 12 members are present except as provided in R.C.M. 501(a)(1)(B), where 12 members are not reasonably available because of physical conditions or military exigencies. No special court-martial proceeding requiring the presence of members may be conducted unless at least three members are present except as provided in R.C.M. 912(h). Except as provided in R.C.M. 503(a)(2), when an enlisted accused has requested enlisted members, no proceeding requiring the presence of members may be conducted unless at least one-third of the members actually sitting on the court-martial are enlisted persons.
As long as at least one qualified counsel for each party is present, other counsel for each party may be absent from a court-martial session. An assistant counsel who lacks the qualifications necessary to serve as counsel for a party may not act at a session in the absence of such qualified counsel. If authorized by regulations of the Secretary concerned, for purposes of Article 39(a) sessions solely, the presence of counsel at Article 39(a) sessions may be satisfied by the use of audiovisual technology, such as videoteleconferencing technology. At least one qualified defense counsel shall be physically present with the accused.
See R.C.M. 504(d) concerning qualifications of counsel. Ordinarily, no court-martial proceeding should take place if any defense or assistant defense counsel is absent unless the accused expressly consents to the absence. The military judge may, however proceed in the absence of one or more defense counsel, without the consent of the accused, if the military judge finds that, under the circumstances, a continuance is not warranted and that the accused's right to be adequately represented would not be impaired. See R.C.M. 502(d)(6) and 505(d)(2) concerning withdrawal or substitution of counsel. See R.C.M. 506(d) concerning the right of the accused to proceed without counsel.
When after presentation of evidence on the merits has begun, a new member is detailed under R.C.M. 505(c)(2)(B), trial may not proceed unless the testimony and evidence previously admitted on the merits, if recorded verbatim, is read to the new member, or, if not recorded verbatim, and in the absence of a stipulation as to such testimony and evidence, the trial proceeds as if no evidence has been presented.
When a new member is detailed, the military judge should give such instructions as may be appropriate. See also R.C.M. 912 concerning voir dire and challenges. When the court-martial has been reduced below a quorum, a mistrial may be appropriate. See R.C.M. 915.
When, after the presentation of evidence on the merits has begun in trial before military judge alone, a new military judge is detailed under R.C.M. 505(e)(2) trial may not proceed unless the accused requests, and the military judge approves, trial by military judge alone, and a verbatim record of the testimony and evidence or a stipulation thereof is read to the military judge, or the trial proceeds as if no evidence had been presented.
Except as otherwise provided in this rule, courts-martial shall be open to the public. For purposes of this rule, "public" includes members of both the military and civilian communities.
Because of the requirement for public trials, courts-martial must be conducted in facilities which can accommodate a reasonable number of spectators. Military exigencies may occasionally make attendance at courts-martial difficult or impracticable, as, for example, when a court-martial is conducted on a ship at sea or in a unit in a combat zone. This does not violate this rule. However, such exigencies should not be manipulated to prevent attendance at a court-martial. The requirements of this rule may be met even though only servicemembers are able to attend a court-martial. Although not required, servicemembers should be encouraged to attend courts-martial. When public access to a court-martial is limited for some reason, including lack of space, special care must be taken to avoid arbitrary exclusion of specific groups or persons. This may include allocating a reasonable number of seats to members of the press and to relatives of the accused, and establishing procedures for entering and exiting from the courtroom. See also subsection (b) below. There is no requirement that there actually be spectators at a court-martial. The fact that a trial is conducted with members does not make it a public trial.
In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, and exclude specific persons from the courtroom. When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge's belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible.
The military judge must ensure that the dignity and decorum of the proceedings are maintained and that the other rights and interests of the parties and society are protected. Public access to a session may be limited, specific persons may be excluded from the courtroom, and, under unusual circumstances, a session may be closed. Exclusion of specific persons, if unreasonable under the circumstances, may violate the accused's right to a public trial, even though other spectators remain. Whenever specific persons or some members of the public are excluded, exclusion must be limited in time and scope to the minimum extent necessary to achieve the purpose for which it is ordered. Prevention of over- crowding or noise may justify limiting access to the courtroom. Disruptive or distracting appearance or conduct may justify excluding specific persons. Specific persons may be excluded when necessary to protect witnesses from harm or intimidation. Access may be reduced when no other means is available to relieve a witness' inability to testify due to embarrassment or extreme nervousness. Witnesses will ordinarily be excluded from the courtroom so that they cannot hear the testimony of other witnesses. See Mil. R. Evid. 615. For purposes of this rule, the term "victim of an alleged offense" means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.
A victim of an alleged offense committed by the accused may not be excluded from a court-martial relating to the offense unless the military judge, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that hearing or proceeding. The right to attend requires reasonable, accurate, and timely notice of a court-martial relating to the offense.
A victim of an alleged offense committed by the accused has the reasonable right to confer with the trial counsel.
Courts-martial shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure.
The military judge is responsible for protecting both the accused's right to, and the public's interest in, a public trial. A court-martial session is "closed" when no member of the public is permitted to attend. A court-martial is not "closed" merely because the exclusion of certain individuals results in there being no spectators present, as long as the exclusion is not so broad as to effectively bar everyone who might attend the sessions and is put into place for a proper purpose. A session may be closed over the objection of the accused or the public upon meeting the constitutional standard set forth in this Rule. See also Mil. R. Evid. 412(c), 505(i), and 513(e)(2). The accused may waive his right to a public trial. The fact that the prosecution and defense jointly seek to have a session closed does not, however, automatically justify closure, for the public has a right in attending courts-martial. Opening trials to public scrutiny reduces the chance of arbitrary and capricious decisions and enhances public confidence in the court-martial process. The most likely reason for a defense request to close court-martial proceedings is to minimize the potentially adverse effect of publicity on the trial. For example, a pretrial Article 39(a) hearing at which the admissibility of a confession will be litigated may, under some circumstances, be closed, in accordance with this Rule, in order to prevent disclosure to the public (and hence to potential members) of the very evidence that may be excluded. When such publicity may be a problem, a session should be closed only as a last resort. There are alternative means of protecting the proceedings from harmful effects of publicity, including a thorough voir dire (see R.C.M. 912), and, if necessary, a continuance to allow the harmful effects of publicity to dissipate
(see R.C.M. 906(b)(1)). Alternatives that may occasionally be appropriate and are usually preferable to closing a session include: directing members not to read, listen to, or watch any accounts concerning the case; issuing a protective order (see R.C.M. 806(d)); selecting members from recent arrivals in the command, or from outside the immediate area
(see R.C.M. 503(a)(3)); changing the place of trial
(see R.C.M. 906(b)(11)); or sequestering the members.
Video and audio recording and the taking of photographs-except for the purpose of preparing the record of trial-in the courtroom during the proceedings and radio or television broadcasting of proceedings from the courtroom shall not be permitted. However, the military judge may, as a matter of discretion permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed under R.C.M. 804 or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators.
The military judge may, upon request of any party or sua sponte, issue an appropriate protective order, in writing, to prevent parties and witnesses from making extrajudicial statements that present a substantial likelihood of material prejudice to a fair trial by impartial members. For purposes of this subsection, "military judge" does not include the president of a special court-martial without a military judge.
A protective order may proscribe extrajudicial statements by counsel, parties, and witnesses that might divulge prejudicial matter not of public record in the case. Other appropriate matters may also be addressed by such a protective order. Before issuing a protective order, the military judge must consider whether other available remedies would effectively mitigate the adverse effects that any publicity might create, and consider such an order's likely effectiveness in ensuring an impartial court-martial panel. A military judge should not issue a protective order without first providing notice to the parties and an opportunity to be heard. The military judge must state on the record the reasons for issuing the protective order. If the reasons for issuing the order change, the military judge may reconsider the continued necessity for a protective order.
"Oath" includes "affirmation."
An affirmation is the same as an oath, except in an affirmation the words "so help you God" are omitted.
The military judge, members of a general or special court-martial, trial counsel, assistant trial counsel, defense counsel, associate defense counsel, assistant defense counsel, reporter, interpreter, and escort shall take an oath to perform their duties faithfully. For purposes of this rule, "defense counsel," "associate defense counsel," and "assistant defense counsel," include detailed and individual military and civilian counsel.
Article 42(a) provides that regulations of the Secretary concerned shall prescribe: the form of the oath; the time and place of the taking thereof; the manner of recording it; and whether the oath shall be taken for all cases in which the duties are to be performed or in each case separately. In the case of certified legal personnel (Article 26(b); Article 27(b)) these regulations may provide for the administration of an oath on a one-time basis. See also R.C.M. 813 and 901 concerning the point in the proceedings at which it is ordinarily determined whether the required oaths have been taken or are then administered.
Each witness before a court-martial shall be examined on oath.
See R.C.M. 307 concerning the requirement for an oath in preferral of charges. See R.C.M. 405 and 702 concerning the requirements for an oath in Article 32 preliminary hearings and depositions. An accused making an unsworn statement is not a "witness." See R.C.M. 1001(c)(2)(C). A victim of an offense of which the accused has been found guilty is not a "witness" when making an unsworn statement during the presentencing phase of a court-martial. See R.C.M. 1001A.
Any procedure which appeals to the conscience of the person to whom the oath is administered and which binds that person to speak the truth, or, in the case of one other than a witness, properly to perform certain duties, is sufficient.
When the oath is administered in a session to the military judge, members, or any counsel, all persons in the courtroom should stand. In those rare circumstances in which the trial counsel testifies as a witness, the military judge administers the oath. Unless otherwise prescribed by the Secretary concerned the forms below may be used, as appropriate, to administer an oath.
When the military judge is not previously sworn, the trial counsel will administer the following oath to the military judge: "Do you (swear) (affirm) that you will faithfully and impartially perform, according to your conscience and the laws applicable to trial by court-martial, all the duties incumbent upon you as military judge of this court-martial (,so help you God)?"
The following oath, as appropriate, will be administered to the members by the trial counsel: "Do you (swear) (affirm) that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trial by court-martial, the case of the accused now before this court; and that you will not disclose or discover the vote or opinion of any particular member of the court (upon a challenge or) upon the findings or sentence unless required to do so in due course of law (,so help you God)?"
When counsel for either side, including any associate or assistant, is not previously sworn the following oath, as appropriate, will be administered by the military judge: "Do you (swear) (affirm) that you will faithfully perform all the duties of (trial) (assistant trial) (defense)(associate defense) (assistant defense) counsel in the case now in hearing (,so help you God)?"
The trial counsel will administer the following oath to every reporter of a court-martial who has not been previously sworn: "Do you (swear) (affirm) that you will faithfully perform the duties of reporter to this court-martial (,so help you God)?"
The trial counsel or the summary court-martial shall administer the following oath to every interpreter in the trial of any case before a court-martial: "Do you (swear) (affirm) that in the case now in hearing you will interpret truly the testimony you are called upon to interpret (,so help you God)?"
The trial counsel or the summary court-martial will administer the following oath to each witness before the witness first testifies in a case: "Do you (swear) (affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth (,so help you God)?"
The escort on views or inspections by the court-martial will, before serving, take the following oath, which will be administered by the trial counsel: "Do you (swear) (affirm) that you will escort the court-martial and will well and truly point out to them (the place in which the offense charged in this case is alleged to have been committed) (); and that you will not speak to the members concerning
(the alleged offense) (), except to describe (the place aforesaid) () (,so help you God)?"
See Article 136 concerning persons authorized to administer oaths.
The trial counsel of a general or special court-martial shall take such action as may be necessary to ensure that a record which will meet the requirements of R.C.M. 1103 can be prepared.
Except in a special court-martial not authorized to adjudge a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, the trial counsel should ensure that a qualified court reporter is detailed to the court-martial. Trial counsel should also ensure that all exhibits and other documents relating to the case are properly maintained for later inclusion in the record. See also R.C.M. 1103(j) as to the use of videotapes, audiotapes, and similar recordings for the record of trial. Because of the potential requirement for a verbatim transcript, all proceedings, including sidebar conferences, arguments, and rulings and instructions by the military judge, should be recorded. Where there is recorder failure or loss of court reporter's notes, the record should be reconstructed as completely as possible. See also R.C.M. 1103(f). If the interruption is discovered during trial, the military judge should summarize or reconstruct the portion of the proceedings which has not been recorded and then proceed anew and repeat the proceedings from the point where the interruption began. See R.C.M. 1305 concerning the record of trial in summary courts-martial. See DD Forms 490 (Record of Trial), 491 (Summarized Record of Trial), and 491-1 (Summarized Record of Trial-Article 39(a) Session).
Courts-martial may exercise contempt power under Article 48.
Article 48 makes punishable "direct" contempt, as well as "indirect" or "constructive" contempt. "Direct" contempt is that which is committed in the presence of the court-martial or its immediate proximity. "Presence" includes those places outside the courtroom itself, such as waiting areas, deliberation rooms, and other places set aside for the use of the court-martial while it is in session. "Indirect" or "constructive" contempt is non-compliance with lawful writs, processes, orders, rules, decrees, or commands of the court-martial. A "direct" or "indirect" contempt may be actually seen or heard by the court-martial, in which case it may be punished summarily. See subsection (b)(1) below. A "direct" or "indirect" contempt may also be a contempt not actually observed by the court-martial, for example, when an unseen person makes loud noises, whether inside or outside the courtroom, which impede the orderly progress of the proceedings. In such a case the procedures for punishing for contempt are more extensive. See subsection (b)(2) below. The words "any person," as used in Article 48, include all persons, whether or not subject to military law, except the military judge, members, and foreign nationals outside the territorial limits of the United States who are not subject to the code. The military judge may order the offender removed whether or not contempt proceedings are held. It may be appropriate to warn a person whose conduct is improper that persistence in a course of behavior may result in removal or punishment for contempt. See R.C.M. 804, 806. Each contempt may be separately punished. A person subject to the code who commits contempt may be tried by court-martial or otherwise disciplined under Article 134 for such misconduct in addition to or instead of punishment for contempt. See paragraph 108, Part IV; see also Article 98. The 2011 amendment of Article 48 expanded the contempt power of military courts to enable them to enforce orders, such as discovery orders or protective orders regarding evidence, against military or civilian attorneys. Persons not subject to military jurisdiction under Article 2, having been duly subpoenaed, may be prosecuted in Federal civilian court under Article 47 for neglect or refusal to appear or refusal to qualify as a witness or to testify or to produce evidence.
When conduct constituting contempt is directly witnessed by the court-martial, the conduct may be punished summarily.
When the conduct apparently constituting contempt is not directly witnessed by the court-martial, the alleged offender shall be brought before the court-martial and informed orally or in writing of the alleged contempt. The alleged offender shall be given a reasonable opportunity to present evidence, including calling witnesses. The alleged offender shall have the right to be represented by counsel and shall be so advised. The contempt must be proved beyond a reasonable doubt before it may be punished.
The military judge shall in all cases determine whether to punish for contempt and, if so, what the punishment shall be. The military judge shall also determine when during the court-martial the contempt proceedings shall be conducted; however, if the court-martial is composed of members, the military judge shall conduct the contempt proceedings outside the members' presence. The military judge may punish summarily under subsection (b)(1) only if the military judge recites the facts for the record and states that they were directly witnessed by the military judge in the actual presence of the court-martial. Otherwise, the provisions of subsection (b)(2) shall apply.
A record of the contempt proceedings shall be part of the record of the court-martial during which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings shall be prepared and forwarded to the convening authority for review. The convening authority may approve or disapprove all or part of the sentence. The action of the convening authority is not subject to further review or appeal.
A sentence of confinement pursuant to a finding of contempt shall begin to run when it is adjudged unless deferred, suspended, or disapproved by the convening authority. The place of confinement for a civilian or military person who is held in contempt and is to be punished by confinement shall be designated by the convening authority. A fine does not become effective until ordered executed by the convening authority. The military judge may delay announcing the sentence after a finding of contempt to permit the person involved to continue to participate in the proceedings.
The immediate commander of the person held in contempt, or, in the case of a civilian, the convening authority should be notified immediately so that the necessary action on the sentence may be taken. See R.C.M. 1101.
The person held in contempt shall be informed by the convening authority in writing of the holding and sentence, if any, of the court-martial and of the action of the convening authority upon the sentence.
Copies of this communication should be furnished to such other persons including the immediate commander of the offender as may be concerned with the execution of the punishment. A copy shall be included with the record of both the trial and the contempt proceeding.
In rehearings which require findings on all charges and specifications referred to a court-martial and in new or other trials, the procedure shall be the same as in an original trial except as otherwise provided in this rule.
In a rehearing on sentence only, the procedure shall be the same as in an original trial, except that the portion of the procedure which ordinarily occurs after challenges and through and including the findings is omitted, and except as otherwise provided in this rule.
The contents of the record of the original trial consisting of evidence properly admitted on the merits relating to each offense of which the accused stands convicted but not sentenced may be established by any party whether or not testimony so read is otherwise admissible under Mil. R. Evid. 804(b)(1) and whether or not it was given through an interpreter.
Matters excluded from the record of the original trial on the merits or improperly admitted on the merits must not be brought to the attention of the members as a part of the original record of trial.
The accused at a rehearing only on sentence may not withdraw any plea of guilty upon which findings of guilty are based. However, if such a plea is found to be improvident, the rehearing shall be suspended and the matter reported to the authority ordering the rehearing.
When a rehearing on sentence is combined with a trial on the merits of one or more specifications referred to the court-martial, whether or not such specifications are being tried for the first time or reheard, the trial will proceed first on the merits, without reference to the offenses being reheard on sentence only. After findings on the merits are announced, the members, if any, shall be advised of the offenses on which the rehearing on sentence has been directed. Additional challenges for cause may be permitted, and the sentencing procedure shall be the same as at an original trial, except as otherwise provided in this rule. A single sentence shall be adjudged for all offenses.
No member of the court-martial which previously heard the case may sit as a member of the court-martial at any rehearing, new trial, or other trial of the same case.
The military judge at a rehearing may be the same military judge who presided over a previous trial of the same case. The existence or absence of a request for trial by military judge alone at a previous hearing shall have no effect on the composition of a court-martial on rehearing.
The accused at a rehearing or new or other trial shall have the same right to request enlisted members or trial by military judge alone as the accused would have at an original trial.
See R.C.M. 902; 903.
No member may, upon a rehearing or upon a new or other trial, examine the record of any former proceedings in the same case except:
When permitted to do so by the military judge after such matters have been received in evidence; or
That the president of a special court-martial without a military judge may examine that part of the record of former proceedings which relates to errors committed at the former proceedings when necessary to decide the admissibility of offered evidence or other questions of law, and such a part of the record may be read to the members when necessary for them to consider a matter subject to objection by any member.
See R.C.M. 801(e)(2). When a rehearing is ordered, the trial counsel should be provided a record of the former proceedings, accompanying documents, and any decision or review relating to the case, as well as a statement of the reason for the rehearing.
Sentences at rehearings, new trials, or other trials shall be adjudged within the limitations set forth in R.C.M. 1003. Except as otherwise provided in subsection (d)(2) of this rule, offenses on which a rehearing, new trial, or other trial has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory. When a rehearing or sentencing is combined with trial on new charges, the maximum punishment that may be approved by the convening authority shall be the maximum punishment under R.C.M. 1003 for the offenses being reheard as limited above, plus the total maximum punishment under R.C.M. 1003 for any new charges of which the accused has been found guilty. In the case of an "other trial" no sentence limitations apply if the original trial was invalid because a summary or special court-martial improperly tried an offense involving a mandatory punishment or one otherwise considered capital.
At a rehearing, the trier of fact is not bound by the sentence previously adjudged or approved. The members should not be advised of the sentence limitation under this rule. See R.C.M. 1005(e)(1). An appropriate sentence on a retried or reheard offense should be adjudged without regard to any credit to which the accused may be entitled. See R.C.M. 103(2) and R.C.M. 103(3) as to when a rehearing may be a capital case.
If, after the earlier court-martial, the sentence was approved in accordance with a pretrial agreement and at the rehearing the accused fails to comply with the pretrial agreement, by failing to enter a plea of guilty or otherwise, the approved sentence resulting at a rehearing of the affected charges and specifications may include any otherwise lawful punishment not in excess of or more serious than lawfully adjudged at the earlier court-martial.
"Other trial" means another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction or failure of a charge to state an offense.
The parties may make an oral or written stipulation to any fact, the contents of a document, or the expected testimony of a witness.
Before accepting a stipulation in evidence, the military judge must be satisfied that the parties consent to its admission.
Ordinarily, before accepting any stipulation the military judge should inquire to ensure that the accused understands the right not to stipulate, understands the stipulation, and consents to it. If the stipulation practically amounts to a confession to an offense to which a not guilty plea is outstanding, it may not be accepted unless the military judge ascertains: (A) from the accused that the accused understands the right not to stipulate and that the stipulation will not be accepted without the accused's consent; that the accused understands the contents and effect of the stipulation; that a factual basis exists for the stipulation; and that the accused, after consulting with counsel, consents to the stipulation; and (B) from the accused and counsel for each party whether there are any agreements between the parties in connection with the stipulation, and, if so, what the terms of such agreements are. A stipulation practically amounts to a confession when it is the equivalent of a guilty plea, that is, when it establishes, directly or by reasonable inference, every element of a charged offense and when the defense does not present evidence to contest any potential remaining issue of the merits. Thus, a stipulation which tends to establish, by reasonable inference, every element of a charged offense does not practically amount to a confession if the defense contests an issue going to guilt which is not foreclosed by the stipulation. For example, a stipulation of fact that contraband drugs were discovered in a vehicle owned by the accused would normally practically amount to a confession if no other evidence were presented on the issue, but would not if the defense presented evidence to show that the accused was unaware of the presence of the drugs. Whenever a stipulation establishes the elements of a charged offense, the military judge should conduct an inquiry as described above. If, during an inquiry into a confessional stipulation the military judge discovers that there is a pretrial agreement, the military judge must conduct an inquiry into the pretrial agreement. See R.C.M. 910(f). See also R.C.M. 705.
A party may withdraw from an agreement to stipulate or from a stipulation at any time before a stipulation is accepted; the stipulation may not then be accepted. After a stipulation has been accepted a party may withdraw from it only if permitted to do so in the discretion of the military judge.
If a party withdraws from an agreement to stipulate or from a stipulation, before or after it has been accepted, the opposing party may be entitled to a continuance to obtain proof of the matters which were to have been stipulated. If a party is permitted to withdraw from a stipulation previously accepted, the stipulation must be disregarded by the court-martial, and an instruction to that effect should be given.
Unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto. The contents of a stipulation of expected testimony or of a document's contents may be attacked, contradicted, or explained in the same way as if the witness had actually so testified or the document had been actually admitted. The fact that the parties so stipulated does not admit the truth of the indicated testimony or document's contents, nor does it add anything to the evidentiary nature of the testimony or document. The Military Rules of Evidence apply to the contents of stipulations.
When offered, a written stipulation shall be presented to the military judge and shall be included in the record whether accepted or not. Once accepted, a written stipulation of expected testimony shall be read to the members, if any, but shall not be presented to them; a written stipulation of fact or of a document's contents may be read to the members, if any, presented to them, or both. Once accepted, an oral stipulation shall be announced to the members, if any.
In joint trials and in common trials, each accused shall be accorded the rights and privileges as if tried separately.
See R.C.M. 307(c)(5) concerning preparing charges and specifications for joint trials. See R.C.M. 601(e)(3) concerning referral of charges for joint or common trials, and the distinction between the two. See R.C.M. 906(b)(9) concerning motions to sever and other appropriate motions in joint or common trials. In a joint or common trial, each accused may be represented by separate counsel, make challenges for cause, make peremptory challenges (see R.C.M. 912), cross-examine witnesses, elect whether to testify, introduce evidence, request that the membership of the court include enlisted persons, if an enlisted accused, and, if a military judge has been detailed, request trial by military judge alone. Where different elections are made
(and, when necessary, approved) as to court-martial composition a severance is necessary. Thus, if one co-accused elects to be tried by a court-martial composed of officers, and a second requests that enlisted members be detailed to the court, and a third submits a request for trial by military judge alone, which request is approved, three separate trials must be conducted. In a joint or common trial, evidence which is admissible against only one or some of the joint or several accused may be considered only against the accused concerned. For example, when a stipulation is accepted which was made by only one or some of the accused, the stipulation does not apply to those accused who did not join it. See also Mil. R. Evid. 306. In such instances the members must be instructed that the stipulation or evidence may be considered only with respect to the accused with respect to whom it is accepted.
When the court-martial is called to order for the first time in a case, the military judge shall ensure that the following is announced:
The order, including any amendment, by which the court-martial is convened;
The name, rank, and unit or address of the accused;
The name and rank of the military judge, if one has been detailed;
The names and ranks of the members, if any, who are present;
The names and ranks of members who are absent, if presence of members is required;
The names and ranks (if any) of counsel who are present;
The names and ranks (if any) of counsel who are absent; and
The name and rank (if any) of any detailed court reporter.
When the court-martial is called to order after a recess or adjournment or after it has been closed for any reason, the military judge shall ensure that the record reflects whether all parties and members who were present at the time of the adjournment or recess, or at the time the court-martial closed, are present.
Whenever there is a replacement of the military judge, any member, or counsel, either through the appearance of new personnel or personnel previously absent or through the absence of personnel previously present, the military judge shall ensure the record reflects the change and the reason for it.
A court-martial is in session when the military judge so declares.
The military judge should examine the charge sheet, convening order, and any amending orders before calling the initial session to order. Article 35 provides that in time of peace, no proceedings, including Article 39(a) sessions, may be conducted over the accused's objection until five days have elapsed from the service of charges on the accused in the case of a general court-martial. The period is three days for a special court-martial. In computing these periods, the date of service and the date of the proceedings are excluded. Holidays and Sundays are not excluded. Failure to object waives the right to the waiting period, but if it appears that the waiting period has not elapsed, the military judge should bring this to the attention of the defense and secure an affirmative waiver on the record.
After the court-martial is called to order, the presence or absence of the parties, military judge, and members shall be announced.
If the orders detailing the military judge and counsel have not been reduced to writing, an oral announcement of such detailing is required. See R.C.M. 503(b) and (c).
After the personnel have been accounted for as required in subsection (b) of this rule, the trial counsel shall announce whether the reporter and interpreter, if any is present, have been properly sworn. If not sworn, the reporter and interpreter, if any, shall be sworn.
See R.C.M. 807 concerning the oath to be administered to a court reporter or interpreter. If a reporter or interpreter is replaced at any time during trial, this should be noted for the record, and the procedures in this subsection should be repeated.
The trial counsel shall announce the legal qualifications and status as to oaths of the members of the prosecution and whether any member of the prosecution has acted in any manner which might tend to disqualify that counsel.
The detailed defense counsel shall announce the legal qualifications and status as to oaths of the detailed members of the defense and whether any member of the defense has acted in any manner which might tend to disqualify that counsel. Any defense counsel not detailed shall state that counsel's legal qualifications, and whether that counsel has acted in any manner which might tend to disqualify the counsel.
If it appears that any counsel may be disqualified, the military judge shall decide the matter and take appropriate action.
Counsel may be disqualified because of lack of necessary qualifications, or because of duties or actions which are inconsistent with the role of counsel. See R.C.M. 502(d) concerning qualifications of counsel. If it appears that any counsel may be disqualified, the military judge should conduct an inquiry or hearing. If any detailed counsel is disqualified, the appropriate authority should be informed. If any defense counsel is disqualified, the accused should be so informed. If the disqualification of trial or defense counsel is one which the accused may waive, the accused should be so informed by the military judge, and given the opportunity to decide whether to waive the disqualification. In the case of defense counsel, if the disqualification is not waivable or if the accused elects not to waive the disqualification, the accused should be informed of the choices available and given the opportunity to exercise such options. If any counsel is disqualified, the military judge should ensure that the accused is not prejudiced by any actions of the disqualified counsel or any break in representation of the accused. Disqualification of counsel is not a jurisdictional defect; such error must be tested for prejudice. If the membership of the prosecution or defense changes at any time during the proceedings, the procedures in this subsection should be repeated as to the new counsel. In addition, the military judge should ascertain on the record whether the accused objects to a change of defense counsel. See R.C.M. 505(d)(2) and 506(c).
The military judge shall, in open session:
Inform the accused of the rights to be represented by military counsel detailed to the defense; or by individual military counsel requested by the accused, if such military counsel is reasonably available; and by civilian counsel, either alone or in association with military counsel, if such civilian counsel is provided at no expense to the United States;
Inform the accused that, if afforded individual military counsel, the accused may request retention of detailed counsel as associate counsel, which request may be granted or denied in the sole discretion of the authority who detailed the counsel;
Ascertain from the accused whether the accused understands these rights;
Promptly inquire, whenever two or more accused in a joint or common trial are represented by the same detailed or individual military or civilian counsel, or by civilian counsel who are associated in the practice of law, with respect to such joint representation and shall personally advise each accused of the right to effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the military judge shall take appropriate measures to protect each accused's right to counsel; and
Whenever it appears that any defense counsel may face a conflict of interest, the military judge should inquire into the matter, advise the accused of the right to effective assistance of counsel, and ascertain the accused's choice of counsel. When defense counsel is aware of a potential conflict of interest, counsel should discuss the matter with the accused. If the accused elects to waive such conflict, counsel should inform the military judge of the matter at an Article 39(a) session so that an appropriate record can be made.
The military judge shall administer the oath to any counsel not sworn.
See R.C.M. 807.
In cases in which a military judge has been detailed, the procedures described in R.C.M. 901 through 903, 904 when authorized by the Secretary concerned, and 905 through 910 shall be conducted without members present in accordance with R.C.M. 803.
Except as provided in subsection (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned.
A military judge shall also disqualify himself or herself in the following circumstances:
Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.
Where the military judge has acted as counsel, preliminary hearing officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.
Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded charges in the case with a personal recommendation as to disposition, or, except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.
Where the military judge is not eligible to act because the military judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M. 503(b).
Where the military judge, the military judge's spouse, or a person within the third degree of relationship to either of them or a spouse of such person:
Is a party to the proceeding;
Is known by the military judge to have an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding; or
Is to the military judge's knowledge likely to be a material witness in the proceeding.
A military judge should inform himself or herself about his or her financial interests, and make a reasonable effort to inform himself or herself about the financial interests of his or her spouse and minor children living in his or her household.
For the purposes of this rule the following words or phrases shall have the meaning indicated-
"Proceeding" includes pretrial, trial, post-trial, appellate review, or other stages of litigation.
The "degree of relationship" is calculated according to the civil law system.
Relatives within the third degree of relationship are children, grandchildren, great grandchildren, parents, grandparents, great grandparents, brothers, sisters, uncles, aunts, nephews, and nieces.
There is no peremptory challenge against a military judge. A military judge should carefully consider whether any of the grounds for disqualification in this rule exist in each case. The military judge should broadly construe grounds for challenge but should not step down from a case unnecessarily. Possible grounds for disqualification should be raised at the earliest reasonable opportunity. They may be raised at any time, and an earlier adverse ruling does not bar later consideration of the same issue, as, for example, when additional evidence is discovered.
Nothing in this rule prohibits the military judge from reasonably limiting the presentation of evidence, the scope of questioning, and argument on the subject so as to ensure that only matters material to the central issue of the military judge's possible disqualification are considered, thereby, preventing the proceedings from becoming a forum for unfounded opinion, speculation or innuendo.
No military judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b) of this rule. Where the ground for disqualification arises only under subsection
Before the end of the initial Article 39(a) session or, in the absence of such a session, before assembly, the military judge shall ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial including enlisted members. The military judge may, as a matter of discretion, permit the accused to defer requesting enlisted members until any time before assembly, which time may be determined by the military judge.
Before the end of the initial Article 39(a) session, or, in the absence of such a session, before assembly, the military judge shall ascertain, as applicable, whether in a noncapital case, the accused requests trial by the military judge alone. The accused may defer requesting trial by military judge alone until any time before assembly.
Only an enlisted accused may request that enlisted members be detailed to a court-martial. Trial by military judge alone is not permitted in capital cases (see R.C.M. 201(f)(1)(C)) or in special courts-martial in which no military judge has been detailed.
A request for the membership of the court-martial to include enlisted persons shall be in writing and signed by the accused or shall be made orally on the record.
A request for trial by military judge alone shall be in writing and signed by the accused or shall be made orally on the record.
Upon notice of a timely request for enlisted members by an enlisted accused, the convening authority shall detail enlisted members to the court-martial in accordance with R.C.M. 503 or prepare a detailed written statement explaining why physical conditions or military exigencies prevented this. The trial of the general issue shall not proceed until this is done.
Upon receipt of a timely request for trial by military judge alone the military judge shall:
Ordinarily the military judge should inquire personally of the accused to ensure that the accused's waiver of the right to trial by members is knowing and understanding. Failure to do so is not error, however, where such knowledge and understanding otherwise appear on the record. DD Form 1722 (Request for Trial Before Military Judge Alone (Art.16, UCMJ)) should normally be used for the purpose of requesting trial by military judge alone under this rule, if a written request is used.
A timely request for trial by military judge alone should be granted unless there is substantial reason why, in the interest of justice, the military judge should not sit as factfinder. The military judge may hear arguments from counsel before acting on the request. The basis for denial of a request must be made a matter of record.
In the absence of a request for enlisted members or a request for trial by military judge alone, trial shall be by a court-martial composed of officers.
Ordinarily if no request for enlisted members or trial by military judge alone is submitted, the military judge should inquire whether such a request will be made (see subsection (a)(1) of this rule) unless these elections are not available to the accused.
A request for enlisted members may be withdrawn by the accused as a matter of right any time before the end of the initial Article 39(a) session, or, in the absence of such a session, before assembly.
A request for trial by military judge alone may be withdrawn by the accused as a matter of right any time before it is approved, or even after approval, if there is a change of the military judge.
Withdrawal of a request for enlisted members or trial by military judge alone should be shown in the record.
Failure to request, or failure to withdraw a request for enlisted members or trial by military judge alone in a timely manner shall waive the right to submit or to withdraw such a request. However, the military judge may until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely request or withdrawal of a request.
In exercising discretion whether to approve an untimely request or withdrawal of a request, the military judge should balance the reason for the request (for example, whether it is a mere change of tactics or results from a substantial change of circumstances) against any expense, delay, or inconvenience which would result from granting the request.
For purposes of this rule, "military judge" does not include the president of a special court-martial without a military judge.
Arraignment shall be conducted in a court-martial session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading.
Arraignment is complete when the accused is called upon to plead; the entry of pleas is not part of the arraignment. When authorized by regulations of the Secretary concerned, the arraignment should be conducted at an Article 39(a) session when a military judge has been detailed. The accused may not be arraigned at a conference under R.C.M. 802. Once the accused has been arraigned, no additional charges against that accused may be referred to that court-martial for trial with the previously referred charges. _ See_ R.C.M. 601(e)(2). The defense should be asked whether it has any motions to make before pleas are entered. Some motions ordinarily must be made before a plea is entered. _ See _ R.C.M. 905(b).
A motion is an application to the military judge for particular relief. Motions may be oral or, at the discretion of the military judge, written. A motion shall state the grounds upon which it is made and shall set forth the ruling or relief sought. The substance of a motion, not its form or designation, shall control.
Motions may be motions to suppress [(see R.C.M. 905(b)(3))]; motions for appropriate relief (see R.C.M. 906); motions to dismiss (see R.C.M. 907); or motions for findings of not guilty (see R.C.M. 917).
Any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial. The following must be raised before a plea is entered:
Such nonjurisdictional defects include unsworn charges, inadequate Article 32 preliminary hearing, and inadequate pretrial advice. See R.C.M. 307; 401-407; 601-604.
(other than any failure to show jurisdiction or to charge an offense, which objections shall be resolved by the military judge at any time during the pendency of the proceedings);
See R.C.M. 307; 906(b)(3).
Mil. R. Evid. 304(d), 311(d), and 321(c) deal with the admissibility of confessions and admissions, evidence obtained from unlawful searches and seizures, and eyewitness identification, respectively. Questions concerning the admissibility of evidence on other grounds may be raised by objection at trial or by motions in limine. _ See_ R.C.M. 906(b)(13); Mil. R. Evid. 103(c); 104(a) and (c).
See also R.C.M. 703; 1001(e).
See R.C.M. 812; 906(b)(9) and (10).
See R.C.M. 506(b); 906(b)(2).
Unless otherwise provided in this Manual, the burden of proof on any factual issue the resolution of which is necessary to decide a motion shall be by a preponderance of the evidence.
See Mil. R. Evid. 104(a) concerning the applicability of the Military Rules of Evidence to certain preliminary questions.
See, for example, subsection (c)(2)(B) of this rule, R.C.M. 908 and Mil. R. Evid. 304(e), 311(e), and 321(d) for provisions specifically assigning the burden of proof.
A motion made before pleas are entered shall be determined before pleas are entered unless, if otherwise not prohibited by this Manual, the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, but no such determination shall be deferred if a party's right to review or appeal is adversely affected. Where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record.
When trial cannot proceed further as the result of dismissal or other rulings on motions, the court-martial should adjourn and a record of the proceedings should be prepared for the convening authority. See R.C.M. 908(b)(4) regarding automatic stay of certain rulings and orders subject to appeal under that rule. Notwithstanding the dismissal of some specifications, trial may proceed in the normal manner as long as one or more charges and specifications remain. The promulgating orders should reflect the action taken by the court-martial on each charge and specification, including any which were dismissed by the military judge on a motion. See R.C.M. 1114.
Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection
See also R.C.M. 910(j) concerning matters waived by a plea of guilty.
On request of any party or sua sponte, the military judge may, prior to authentication of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge.
Subsection (f) permits the military judge to reconsider any ruling that affects the legal sufficiency of any finding of guilt or the sentence. See R.C.M. 917(d) for the standard to be used to determine the legal sufficiency of evidence. See also R.C.M. 1102 concerning procedures for post-trial reconsideration. Different standards may apply depending on the nature of the ruling. See United States v. Scaff , 29 M.J. 60 (C.M.A. 1989).
Any matter put in issue and finally determined by a court-martial, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the United States in any other court-martial of the same accused, except that, when the offenses charged at one court-martial did not arise out of the same transaction as those charged at the court-martial at which the determination was made, a determination of law and the application of law to the facts may be disputed by the United States. This rule also shall apply to matters which were put in issue and finally determined in any other judicial proceeding in which the accused and the United States or a Federal governmental unit were parties.
See also R.C.M. 907(b)(2)(C). Whether a matter has been finally determined in another judicial proceeding with jurisdiction to decide it, and whether such determination binds the United States in another proceeding are interlocutory questions. See R.C.M. 801(e). It does not matter whether the earlier proceeding ended in an acquittal, conviction, or otherwise, as long as the determination is final. Except for a ruling which is, or amounts to, a finding of not guilty, a ruling ordinarily is not final until action on the court-martial is completed. See Article 76; R.C.M. 1209. The accused is not bound in a court-martial by rulings in another court-martial. But see Article 3(b); R.C.M. 202. The determination must have been made by a court-martial, reviewing authority, or appellate court, or by another judicial body, such as a United States court. A pretrial determination by a convening authority is not a final determination under this rule, although some decisions by a convening authority may bind the Government under other rules. See, for example, R.C.M. 601, 604, 704, 705. The United States is bound by a final determination by a court of competent jurisdiction even if the earlier determination is erroneous, except when the offenses charged at the second proceeding arose out of a different transaction from those charged at the first and the ruling at the first proceeding was based on an incorrect determination of law. A final determination in one case may be the basis for a motion to dismiss or a motion for appropriate relief in another case, depending on the circumstances. The nature of the earlier determination and the grounds for it will determine its effect in other proceedings. Examples:
The military judge dismissed a charge for lack of personal jurisdiction, on grounds that the accused was only 16 years old at the time of enlistment and when the offenses occurred. At a second court-martial of the same accused for a different offense, the determination in the first case would require dismissal of the new charge unless the prosecution could show that since that determination the accused had effected a valid enlistment or constructive enlistment. See R.C.M. 202. Note, however, that if the initial ruling had been based on an error of law (for example, if the military judge had ruled the enlistment invalid because the accused was 18 at the time of enlistment) this would not require dismissal in the second court-martial for a different offense.
The accused was tried in United States district court for assault on a Federal officer. The accused defended solely on the basis of alibi and was acquitted. The accused is then charged in a court-martial with assault on a different person at the same time and place as the assault on a Federal officer was alleged to have occurred. The acquittal of the accused in Federal district court would bar conviction of the accused in the court-martial. In cases of this nature, the facts of the first trial must be examined to determine whether the finding of the first trial is logically inconsistent with guilt in the second case.
At a court-martial for larceny, the military judge excluded evidence of a statement made by the accused relating to the larceny and other uncharged offenses because the statement was obtained by coercion. At a second court-martial for an unrelated offense, the statement excluded at the first trial would be inadmissible, based on the earlier ruling, if the first case had become final. If the earlier ruling had been based on an incorrect interpretation of law, however, the issue of admissibility could be litigated anew at the second proceeding.
At a court-martial for absence without authority, the charge and specification were dismissed for failure to state an offense. At a later court-martial for the same offense, the earlier dismissal would be grounds for dismissing the same charge and specification, but would not bar further proceedings on a new specification not containing the same defect as the original specification.
Written motions may be submitted to the military judge after referral and when appropriate they may be supported by affidavits, with service and opportunity to reply to the opposing party. Such motions may be disposed of before arraignment and without a session. Upon request, either party is entitled to an Article 39(a) session to present oral argument or have an evidentiary hearing concerning the disposition of written motions.
Written motions shall be served on all other parties. Unless otherwise directed by the military judge, the service shall be made upon counsel for each party.
Except as provided in this subsection, R.C.M. 914 shall apply at a hearing on a motion to suppress evidence under subsection (b)(3) of this rule. For purposes of this subsection, a law enforcement officer shall be deemed a witness called by the Government, and upon a claim of privilege the military judge shall excise portions of the statement containing privileged matter.
A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing for trial or presenting its case.
The following may be requested by motion for appropriate relief. This list is not exclusive.
A continuance may be granted only by the military judge.
The military judge should, upon a showing of reasonable cause, grant a continuance to any party for as long and as often as is just. Article 40. Whether a request for a continuance should be granted is a matter within the discretion of the military judge. Reasons for a continuance may include: insufficient opportunity to prepare for trial; unavailability of an essential witness; the interest of Government in the order of trial of related cases; and illness of an accused, counsel, military judge, or member. See also R.C.M. 602; 803.
If a request for military counsel was denied, which denial was upheld on appeal (if available) or if a request to retain detailed counsel was denied when the accused is represented by individual military counsel, and if the accused so requests, the military judge shall ensure that a record of the matter is included in the record of trial, and may make findings. The trial counsel may request a continuance to inform the convening authority of those findings. The military judge may not dismiss the charges or otherwise effectively prevent further proceedings based on this issue. However, the military judge may grant reasonable continuances until the requested military counsel can be made available if the unavailability results from temporary conditions or if the decision of unavailability is in the process of review in administrative channels.
See R.C.M. 405; 406. If the motion is granted, the military judge should ordinarily grant a continuance so the defect may be corrected.
A charge or specification may not be amended over the accused's objection unless the amendment is minor within the meaning of R.C.M. 603(a).
See also R.C.M. 307. An amendment may be appropriate when a specification is unclear, redundant, inartfully drafted, misnames an accused, or is laid under the wrong article. A specification may be amended by striking surplusage, or substituting or adding new language. Surplusage may include irrelevant or redundant details or aggravating circumstances which are not necessary to enhance the maximum authorized punishment or to explain the essential facts of the offense. When a specification is amended after the accused has entered a plea to it, the accused should be asked to plead anew to the amended specification. A bill of particulars (see subsection (b)(6) of this rule) may also be used when a specification is indefinite or ambiguous. If a specification, although stating an offense, is so defective that the accused appears to have been misled, the accused should be given a continuance upon request, or, in an appropriate case (see R.C.M. 907(b)(3)), the specification may be dismissed.
Each specification may state only one offense. R.C.M. 307(c)(4). A duplicitous specification is one which alleges two or more separate offenses. Lesser included offenses (see paragraph 3, Part IV) are not separate, nor is a continuing offense involving separate acts. The sole remedy for a duplicitous specification is severance of the specification into two or more specifications, each of which alleges a separate offense contained in the duplicitous specification. However, if the duplicitousness is combined with or results in other defects, such as misleading the accused, other remedies may be appropriate. See subsection (b)(3) of this rule. See also R.C.M. 907(b)(3).
A bill of particulars may be amended at any time, subject to such conditions as justice permits.
The purposes of a bill of particulars are to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes. A bill of particulars should not be used to conduct discovery of the Government's theory of a case, to force detailed disclosure of acts underlying a charge, or to restrict the Government's proof at trial. A bill of particulars need not be sworn because it is not part of the specification. A bill of particulars cannot be used to repair a specification which is otherwise not legally sufficient.
See R.C.M. 701 concerning discovery. See R.C.M. 703, 914 and 1001(e) concerning production of evidence and witnesses.
Upon a motion for release from pretrial confinement, a victim of an alleged offense committed by the accused has the right to reasonable, accurate, and timely notice of the motion and any hearing, the right to confer with trial counsel, and the right to be reasonably heard. Inability to reasonably afford a victim these rights shall not delay the proceedings. The right to be heard under this rule includes the right to be heard through counsel.
See R.C.M. 305(j).
A motion for severance is a request that one or more accused against whom charges have been referred to a joint or common trial be tried separately. Such a request should be granted if good cause is shown. For example, a severance may be appropriate when: the moving party wishes to use the testimony of one or more of the coaccused or the spouse of a coaccused; a defense of a coaccused is antagonistic to the moving party; or evidence as to any other accused will improperly prejudice the moving accused. If a severance is granted by the military judge, the military judge will decide which accused will be tried first. See R.C.M. 801(a)(1). In the case of joint charges, the military judge will direct an appropriate amendment of the charges and specifications. See also R.C.M. 307(c)(5); 601(e)(3); 604; 812.
Ordinarily, all known charges should be tried at a single court-martial. Joinder of minor and major offenses, or of unrelated offenses is not alone a sufficient ground to sever offenses. For example, when an essential witness as to one offense is unavailable, it might be appropriate to sever that offense to prevent violation of the accused's right to a speedy trial.
The place of trial may be changed when necessary to prevent prejudice to the rights of the accused or for the convenience of the Government if the rights of the accused are not prejudiced thereby.
A change of the place of trial may be necessary when there exists in the place where the court-martial is pending so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial there, or to obtain compulsory process over an essential witness. When it is necessary to change the place of trial, the choice of places to which the court-martial will be transferred will be left to the convening authority, as long as the choice is not inconsistent with the ruling of the military judge.
The military judge may provide a remedy, as provided below, if he or she finds there has been an unreasonable multiplication of charges as applied to findings or sentence.
Charges that arise from substantially the same transaction, while not legally multiplicious, may still be unreasonably multiplied as applied to findings. When the military judge finds, in his or her discretion, that the offenses have been unreasonably multiplied, the appropriate remedy shall be dismissal of the lesser offenses or merger of the offenses into one specification.
Where the military judge finds that the nature of the harm requires a remedy that focuses more appropriately on punishment than on findings, he or she may find that there is an unreasonable multiplication of charges as applied to sentence. If the military judge makes such a finding, the maximum punishment for those offenses determined to be unreasonably multiplied shall be the maximum authorized punishment of the offense carrying the greatest maximum punishment.
Unreasonable multiplication of charges as applied to findings and sentence is a limitation on the military's discretion to charge separate offenses and does not have a foundation in the Constitution. The concept is based on reasonableness and the prohibition against prosecutorial overreaching. In contrast, multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment. It prevents an accused from being twice punished for one offense if it is contrary to the intent of Congress. See R.C.M. 907(b)(3). Therefore, a motion for relief from unreasonable multiplication of charges as applied to findings and sentence differs from a motion to dismiss on the grounds of multiplicity. The following non-exhaustive factors should be considered when determining whether two or more offenses are unreasonably multiplied: whether the specifications are aimed at distinctly separate criminal acts; whether they represent or exaggerate the accused's criminality; whether they unreasonably increase his or her exposure to punishment; and whether they suggest prosecutorial abuse of discretion in drafting of the specifications. Because prosecutors are permitted to plead in the alternative based on exigencies of proof, a ruling on this motion ordinarily should be deferred until after findings are entered.
See Mil. R. Evid. 104(c) A request for a preliminary ruling on admissibility is a request that certain matters which are ordinarily decided during trial of the general issue be resolved before they arise, outside the presence of members. The purpose of such a motion is to avoid the prejudice which may result from bringing inadmissible matters to the attention of court members. Whether to rule on an evidentiary question before it arises during trial is a matter within the discretion of the military judge. But see R.C.M. 905(b)(3) and (d); and Mil. R. Evid. 304(e)(2); 311(e)(2); 321(d)(2). Reviewability of preliminary rulings will be controlled by the Supreme Court's decision in_ Luce v. United States_, 469 U.S. 38 (1984).
See R.C.M. 706, 909, and 916(k) regarding procedures and standards concerning the mental capacity or responsibility of the accused.
A motion to dismiss is a request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt.
Dismissal of a specification terminates the proceeding with respect to that specification unless the decision to dismiss is reconsidered and reversed by the military judge. See R.C.M. 905(f). Dismissal of a specification on grounds stated in subsection (b)(1) or (b)(3)(A) below does not ordinarily bar a later court-martial for the same offense if the grounds for dismissal no longer exist. See also R.C.M. 905(g) and subsection (b)(2) below. See R.C.M. 916 concerning defenses.
Grounds for dismissal include the following-
A charge or specification shall be dismissed at any stage of the proceedings if:
See R.C.M. 201-203.
See R.C.M. 307(c)
A charge or specification shall be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if:
Dismissal is required under R.C.M. 707;
The statute of limitations (Article 43) has run, provided that, if it appears that the accused is unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform the accused of this right;
Except for certain offenses for which there is either: no limitation as to time; or child abuse offenses for which a time limitation has been enacted and applies that is based upon the life of a child abuse victim, _ see_ Article 43(a) and (b)(2) , a person charged with an offense under the code may not be tried by court-martial over objection if sworn charges have not been received by the officer exercising summary court-martial jurisdiction over the command within five years. See Article 43(b). This period may be tolled (Article 43(c) and (d)), extended (Article 43(e) and (g)), or suspended (Article 43(f)) under certain circumstances. The prosecution bears the burden of proving that the statute of limitations has been tolled, extended, or suspended if it appears that is has run. Some offenses are continuing offenses and any period of the offense occurring within the statute of limitations is not barred. Absence without leave, desertion, and fraudulent enlistment are not continuing offenses and are committed, respectively, on the day the person goes absent, deserts, or first receives pay or allowances under the enlistment. When computing the statute of limitations, periods in which the accused was fleeing from justice or periods when the accused was absent without leave or in desertion are excluded. The military judge must determine by a preponderance, as an interlocutory matter, whether the accused was absent without authority or fleeing from justice. It would not be necessary that the accused be charged with the absence offense. In cases where the accused is charged with both an absence offense and a non-absence offense, but is found not guilty of the absence offense, the military judge would reconsider, by a preponderance, his or her prior determination whether that period of time is excludable. If sworn charges have been received by an officer exercising summary court-martial jurisdiction over the command within the period of the statute, minor amendments
(see R.C.M. 603(a)) may be made in the specification after the statute of limitations has run. However, if new charges are drafted or a major amendment made (see R.C.M. 603(d)) after the statute of limitations has run, prosecution is barred. The date of receipt of sworn charges is excluded when computing the appropriate statutory period. The date of the offense is included in the computation of the elapsed time. Article 43(g) allows the government time to reinstate charges dismissed as defective or insufficient for any cause. The government would have up to six months to reinstate the charges if the original period of limitations has expired or will expire within six months of the dismissal. In some cases, the issue whether the statute of limitations has run will depend on the findings on the general issue of guilt. For example, where the date of an offense is in dispute, a finding by the court-martial that the offense occurred at an earlier time may affect a determination as to the running of the statute of limitations. When the statute of limitations has run as to a lesser included offense, but not as to the charged offense, see R.C.M. 920(e)(2) with regard to instructions on the lesser offense.
No court-martial proceeding is a trial in the sense of this rule unless presentation of evidence on the general issue of guilt has begun;
No court-martial proceeding which has been terminated under R.C.M. 604(b) or R.C.M. 915 shall bar later prosecution for the same offense or offenses, if so provided in those rules;
No court-martial proceeding in which an accused has been found guilty of any charge or specification is a trial in the sense of this rule until the finding of guilty has become final after review of the case has been fully completed; and
No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial in the sense of this rule.
Discussion
A pardon may grant individual or general amnesty.
Discussion
See R.C.M. 704.
Constructive condonation of desertion established by unconditional restoration to duty without trial of a deserter by a general court-martial convening authority who knew of the desertion; or
Prior punishment under Articles 13 or 15 for the same offense, if that offense was minor.
Discussion
See Articles 13 and 15(f). See paragraph 1e of Part V for a definition of "minor" offenses.
A specification may be dismissed upon timely motion by the accused if one of the following is applicable:
When the specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on any remaining charges and specifications without undue delay; or
When the specification is multiplicious with another specification, is unnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. A charge is multiplicious if the proof of such charge also proves every element of another charge.
Multiplicity is a legal concept, arising from the Double Jeopardy Clause of the Fifth Amendment, which provides that no person shall be put in jeopardy twice for the same offense. Absent legislative intent to the contrary, an accused cannot be convicted and punished for violations of two or more statutes if those violations arise from a single act. Where Congress intended to impose multiple punishments for the same act, imposition of such sentence does not violate the Constitution. Multiplicity differs from unreasonable multiplication of charges. If two offenses are not multiplicious, they nonetheless may constitute an unreasonable multiplication of charges as applied to findings or sentence. See R.C.M. 906(b)(12). Unreasonable multiplication of charges is a limitation on the military's discretion to charge separate offenses. It does not have a foundation in the Constitution; it is based on reasonableness and the prohibition against prosecutorial overreaching. The military judge is to determine, in his or her discretion, whether the charges constitute unreasonable multiplication of charges as applied to findings or sentencing. See R.C.M. 906(b)(12). To determine if two charges are multiplicious, the practitioner should first determine whether they are based on separate acts. If so, the charges are not multiplicious because separate acts may be charged and punished separately. If the charges are based upon a single act, the practitioner should next determine if Congress intended to impose multiple convictions and punishments for the same act. When there is no overt expression of congressional intent in the relevant statutes, such intent may be inferred based on the elements of the charged statutes and their relationship to each other or other principles of statutory interpretation. If each statute contains an element not contained in the other, it may be inferred that Congress intended they be charged and punished separately. Likewise, if each statute contains the same elements, it may be inferred that Congress did not intend they be charged and punished separately. A lesser included offense will always be multiplicious if charged separately, but offenses do not have to be lesser included to be multiplicious. Ordinarily, a specification should not be dismissed for multiplicity before trial. The less serious of any multiplicious specifications shall be dismissed after findings have been reached. Due consideration must be given, however, to possible post-trial or appellate action with regard to the remaining specification.
In a trial by a court-martial over which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling that terminates the proceedings with respect to a charge or specification, or excludes evidence that is substantial proof of a fact material in the proceedings, or directs the disclosure of classified information, or that imposes sanctions for nondisclosure of classified information. The United States may also appeal a refusal by the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information or to enforce such an order that has previously been issued by the appropriate authority. However, the United States may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification.
After an order or ruling which may be subject to an appeal by the United States, the court-martial may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel requests a delay to determine whether to file notice of appeal under this rule. Trial counsel is entitled to no more than 72 hours under this subsection.
The decision whether to file notice of appeal under this rule shall be made within 72 hours of the ruling or order to be appealed. If the Secretary concerned so prescribes, the trial counsel shall not file notice of appeal unless authorized to do so by a person designated by the Secretary concerned.
If the United States elects to appeal, the trial counsel shall provide the military judge with written notice to this effect not later than 72 hours after the ruling or order. Such notice shall identify the ruling or order to be appealed and the charges and specifications affected. Trial counsel shall certify that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.
Upon written notice to the military judge under subsection (b)(3) of this rule, the ruling or order that is the subject of the appeal is automatically stayed and no session of the court-martial may proceed pending disposition by the Court of Criminal Appeals of the appeal, except that solely as to charges and specifications not affected by the ruling or order:
Motions may be litigated, in the discretion of the military judge, at any point in the proceedings;
When trial on the merits has not begun,
a severance may be granted upon request of all the parties;
a severance may be granted upon request of the accused and when appropriate under R.C.M. 906(b)(10); or
Upon written notice to the military judge under subsection (b)(3) of this rule, trial counsel shall cause a record of the proceedings to be prepared. Such record shall be verbatim and complete to the extent necessary to resolve the issues appealed. R.C.M. 1103(g), (h), and (i) shall apply and the record shall be authenticated in accordance with R.C.M. 1104(a). The military judge or the Court of Criminal Appeals may direct that additional parts of the proceeding be included in the record; R.C.M. 1104(d) shall not apply to such additions.
Upon written notice to the military judge under subsection (b)(3) of this rule, trial counsel shall promptly and by expeditious means forward the appeal to a representative of the Government designated by the Judge Advocate General. The matter forwarded shall include: a statement of the issues appealed; the record of the proceedings or, if preparation of the record has not been completed, a summary of the evidence; and such other matters as the Secretary concerned may prescribe. The person designated by the Judge Advocate General shall promptly decide whether to file the appeal with the Court of Criminal Appeals and notify the trial counsel of that decision.
If the United States elects to file an appeal, it shall be filed directly with the Court of Criminal Appeals, in accordance with the rules of that court.
If the United States elects not to file an appeal, trial counsel promptly shall notify the military judge and the other parties.
If an accused is in pretrial confinement at the time the United States files notice of its intent to appeal under subsection (3) above, the commander, in determining whether the accused should be confined pending the outcome of an appeal by the United States, should consider the same factors which would authorize the imposition of pretrial confinement under R.C.M. 305(h)(2)(B).
The parties shall be represented before appellate courts in proceedings under this rule as provided in R.C.M. 1202. Appellate Government counsel shall diligently prosecute an appeal under this rule.
An appeal under Article 62 shall, whenever practicable, have priority over all other proceedings before the Court of Criminal Appeals. In determining an appeal under Article 62, the Court of Criminal Appeals may take action only with respect to matters of law.
After the Court of Criminal Appeals has decided any appeal under Article 62, the accused may petition for review by the Court of Appeals for the Armed Forces, or the Judge Advocate General may certify a question to the Court of Appeals for the Armed Forces. The parties shall be notified of the decision of the Court of Criminal Appeals promptly. If the decision is adverse to the accused, the accused shall be notified of the decision and of the right to petition the Court of Appeals for the Armed Forces for review within 60 days orally on the record at the court-martial or in accordance with R.C.M. 1203(d). If the accused is notified orally on the record, trial counsel shall forward by expeditious means a certificate that the accused was so notified to the Judge Advocate General, who shall forward a copy to the clerk of the Court of Appeals for the Armed Forces when required by the Court. If the decision by the Court of Criminal Appeals permits it, the court-martial may proceed as to the affected charges and specifications pending further review by the Court of Appeals for the Armed Forces or the Supreme Court, unless either court orders the proceedings stayed. Unless the case is reviewed by the Court of Appeals for the Armed Forces, it shall be returned to the military judge or the convening authority for appropriate action in accordance with the decision of the Court of Criminal Appeals. If the case is reviewed by the Court of Appeals for the Armed Forces, R.C.M. 1204 and 1205 shall apply.
For purposes of this rule, "military judge" does not include the president of a special court-martial without a military judge.
No person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.
See also R.C.M. 916(k).
A person is presumed to have the capacity to stand trial unless the contrary is established.
If an inquiry pursuant to R.C.M. 706 conducted before referral concludes that an accused is suffering from a mental disease or defect that renders him or her mentally incompetent to stand trial, the convening authority before whom the charges are pending for disposition may disagree with the conclusion and take any action authorized under R.C.M. 401, including referral of the charges to trial. If that convening authority concurs with the conclusion, he or she shall forward the charges to the general court-martial convening authority. If, upon receipt of the charges, the general court-martial convening authority similarly concurs, then he or she shall commit the accused to the custody of the Attorney General. If the general court-martial convening authority does not concur, that authority may take any action that he or she deems appropriate in accordance with R.C.M. 407, including referral of the charges to trial.
After referral, the military judge may conduct a hearing to determine the mental capacity of the accused, either sua sponte or upon request of either party. If an inquiry pursuant to R.C.M. 706 conducted before or after referral concludes that an accused is suffering from a mental disease or defect that renders him or her mentally incompetent to stand trial, the military judge shall conduct a hearing to determine the mental capacity of the accused. Any such hearing shall be conducted in accordance with paragraph (e) of this rule.
The mental capacity of the accused is an interlocutory question of fact.
Trial may proceed unless it is established by a preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case. In making this determination, the military judge is not bound by the rules of evidence except with respect to privileges.
An accused who is found incompetent to stand trial under this rule shall be hospitalized by the Attorney General as provided in section 4241(d) of title 18, United States Code. If notified that the accused has recovered to such an extent that he or she is able to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense of the case, then the general court-martial convening authority shall promptly take custody of the accused. If, at the end of the period of hospitalization, the accused's mental condition has not so improved, action shall be taken in accordance with section 4246 of title 18, United States Code.
Under section 4241(d) of title 18, the initial period of hospitalization for an incompetent accused shall not exceed four months. However, in determining whether there is a substantial probability the accused will attain the capacity to permit the trial to proceed in the foreseeable future, the accused may be hospitalized for an additional reasonable period of time. This additional period of time ends either when the accused's mental condition is improved so that trial may proceed, or when the pending charges against the accused are dismissed. If charges are dismissed solely due to the accused's mental condition, the accused is subject to hospitalization as provided in section 4246 of title 18.
All periods of commitment shall be excluded as provided by R.C.M. 707(c). The 120-day time period under R.C.M. 707 shall begin anew on the date the general court-martial convening authority takes custody of the accused at the end of any period of commitment.
An accused may plead as follows: guilty; not guilty to an offense as charged, but guilty of a named lesser included offense; guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any; or, not guilty. A plea of guilty may not be received as to an offense for which the death penalty may be adjudged by the court-martial.
See paragraph 3, Part IV, concerning lesser included offenses. When the plea is to a lesser included offense without the use of exceptions and substitutions, the defense counsel should provide a written revised specification to be included in the record as an appellate exhibit. A plea of guilty to a lesser included offense does not bar the prosecution from proceeding on the offense as charged. See also subsection (g) of this rule. A plea of guilty does not prevent the introduction of evidence, either in support of the factual basis for the plea, or, after findings are entered, in aggravation. See R.C.M. 1001(b)(4).
With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for Government; unless otherwise prescribed by the Secretary concerned, the trial counsel may consent on behalf of the Government.
If an accused fails or refuses to plead, or makes an irregular plea, the military judge shall enter a plea of not guilty for the accused.
An irregular plea includes pleas such as guilty without criminality or guilty to a charge but not guilty to all specifications thereunder. When a plea is ambiguous, the military judge should have it clarified before proceeding further.
Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
The elements of each offense to which the accused has pleaded guilty should be described to the accused. See also subsection
In a general or special court-martial, if the accused is not represented by counsel, a plea of guilty should not be accepted.
That the accused has the right to plead not guilty or to persist in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self-incrimination;
That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waives the rights described in subsection
(c)(3) of this Rule; and
The advice in subsection (5) is inapplicable in a court-martial in which the accused is not represented by counsel.
The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement under R.C.M. 705. The military judge shall also inquire whether the accused's willingness to plead guilty results from prior discussions between the convening authority, a representative of the convening authority, or trial counsel, and the accused or defense counsel.
The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea. The accused shall be questioned under oath about the offenses.
A plea of guilty must be in accord with the truth. Before the plea is accepted, the accused must admit every element of the offense(s) to which the accused pleaded guilty. Ordinarily, the elements should be explained to the accused. If any potential defense is raised by the accused's account of the offense or by other matter presented to the military judge, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense. If the statute of limitations would otherwise bar trial for the offense, the military judge should not accept a plea of guilty to it without an affirmative waiver by the accused. _ See_ R.C.M. 907(b)(2)(B). The accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea. Nevertheless the accused must be convinced of, and able to describe all the facts necessary to establish guilt. For example, an accused may be unable to recall certain events in an offense, but may still be able to adequately describe the offense based on witness statements or similar sources which the accused believes to be true. The accused should remain at the counsel table during questioning by the military judge.
A plea agreement may not be accepted if it does not comply with R.C.M. 705.
The parties shall inform the military judge if a plea agreement exists.
The military judge should ask whether a plea agreement exists. See subsection (d) of this rule. Even if the military judge fails to so inquire or the accused answers incorrectly, counsel have an obligation to bring any agreements or understandings in connection with the plea to the attention of the military judge.
If a plea agreement exists, the military judge shall require disclosure of the entire agreement before the plea is accepted, provided that in trial before military judge alone the military judge ordinarily shall not examine any sentence limitation contained in the agreement until after the sentence of the court-martial has been announced.
The military judge shall inquire to ensure:
That the accused understands the agreement; and
That the parties agree to the terms of the agreement.
If the plea agreement contains any unclear or ambiguous terms, the military judge should obtain clarification from the parties. If there is doubt about the accused's understanding of any terms in the agreement, the military judge should explain those terms to the accused.
Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at an Article 39(a) session unless:
Such action is not permitted by regulations of the Secretary concerned;
The plea is to a lesser included offense and the prosecution intends to proceed to trial on the offense as charged; or
Trial is by a special court-martial without a military judge, in which case the president of the court-martial may enter findings based on the pleas without a formal vote except when subsection (g)(2) of this rule applies.
If the accused has pleaded guilty to some offenses but not to others, the military judge should ordinarily defer informing the members of the offenses to which the accused has pleaded guilty until after findings on the remaining offenses have been entered. _ See_ R.C.M. 913(a), Discussion and R.C.M. 920(e), Discussion, paragraph 3.
If after acceptance of the plea but before the sentence is announced the accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser included offense, the military judge may as a matter of discretion permit the accused to do so.
If after findings but before the sentence is announced the accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on which a finding is based, the military judge shall inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty shall be entered as to the affected charges and specifications.
When the accused withdraws a previously accepted plea for guilty or a plea of guilty is set aside, counsel should be given a reasonable time to prepare to proceed. In a trial by military judge alone, recusal of the military judge or disapproval of the request for trial by military judge alone will ordinarily be necessary when a plea is rejected or withdrawn after findings; in trial with members, a mistrial will ordinarily be necessary.
After sentence is announced the military judge shall inquire into any parts of a pretrial agreement which were not previously examined by the military judge. If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge shall conform, with the consent of the Government, the agreement to the accused's understanding or permit the accused to withdraw the plea.
See subsection (f)(3) of this rule.
A verbatim record of the guilty plea proceedings shall be made in cases in which a verbatim record is required under R.C.M. 1103. In other special courts-martial, a summary of the explanation and replies shall be included in the record of trial. As to summary courts-martial, see R.C.M. 1305.
Except as provided in subsection (a)(2) of this rule, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made.
The military judge shall announce the assembly of the court-martial.
When trial is by a court-martial with members, the court-martial is ordinarily assembled immediately after the members are sworn. The members are ordinarily sworn at the first session at which they appear, as soon as all parties and personnel have been announced. The members are seated with the president, who is the senior member, in the center, and the other members alternately to the president's right and left according to rank. If the rank of a member is changed, or if the membership of the court-martial changes, the members should be reseated accordingly. When trial is by military judge alone, the court-martial is ordinarily assembled immediately following approval of the request for trial by military judge alone. Assembly of the court-martial is significant because it marks the point after which: substitution of the members and military judge may no longer take place without good cause (see Article 29; R.C.M. 505; 902; 912); the accused may no longer, as a matter of right, request trial by military judge alone or withdraw such a request previously approved (see Article 16; R.C.M. 903(a)(2)(d)); and the accused may no longer request, even with the permission of the military judge, or withdraw from a request for, enlisted members (see Article 25(c)(1); R.C.M. 903(a)(1)(d)).
Before trial the trial counsel may, and shall upon request of the defense counsel, submit to each member written questions requesting the following information:
Date of birth;
Sex;
Race;
Marital status and sex, age, and number of dependents;
Home of record;
Civilian and military education, including, when available, major areas of study, name of school or institution, years of education, and degrees received;
Current unit to which assigned;
Past duty assignments;
Awards and decorations received;
Date of rank; and
Whether the member has acted as accuser, counsel, preliminary hearing officer, convening authority, or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to disposition. Additional information may be requested with the approval of the military judge. Each member's responses to the questions shall be written and signed by the member.
Using questionnaires before trial may expedite voir dire and may permit more informed exercise of challenges. If the questionnaire is marked or admitted as an exhibit at the court-martial it must be attached to or included in the record of trial. See R.C.M. 1103(b)(2)(D)(iv) and (b)(3)(B).
A copy of any written materials considered by the convening authority in selecting the members detailed to the court-martial shall be provided to any party upon request, except that such materials pertaining solely to persons who were not selected for detail as members need not be provided unless the military judge, for good cause, so directs.
Before the examination of members under subsection (d) of this rule begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.
See R.C.M. 502(a) and 503(a) concerning selection of members. Members are also improperly selected when, for example, a certain group or class is arbitrarily excluded from consideration as members.
Upon a motion under subsection (b)(1) of this rule containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party shall be entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, the military judge shall stay any proceedings requiring the presence of members until members are properly selected.
Failure to make a timely motion under this subsection shall waive the improper selection unless it constitutes a violation of R.C.M. 501(a), 502(a)(1), or 503(a)(2).
The trial counsel shall state any ground for challenge for cause against any member of which the trial counsel is aware.
The military judge may permit the parties to conduct the examination of members or may personally conduct the examination. In the latter event the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge shall submit to the members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of other members when the military judge so directs.
Examination of the members is called "voir dire." If the members have not already been placed under oath for the purpose of voir dire (see R.C.M. 807(b)(2) Discussion (B)), they should be sworn before they are questioned. The opportunity for voir dire should be used to obtain information for the intelligent exercise of challenges; counsel should not purposely use voir dire to present factual matter which will not be admissible or to argue the case. The nature and scope of the examination of members is within the discretion of the military judge. Members may be questioned individually or collectively. Ordinarily, the military judge should permit counsel to personally question the members. Trial counsel ordinarily conducts an inquiry before the defense. Whether trial counsel will question all the members before the defense begins or whether some other procedure will be followed depends on the circumstances. For example, when members are questioned individually outside the presence of other members, each party would ordinarily complete questioning that member before another member is questioned. The military judge and each party may conduct additional questioning, after initial questioning by a party, as necessary. Ordinarily the members should be asked whether they are aware of any ground for challenge against them. This may expedite further questioning. The members should be cautioned, however, not to disclose information in the presence of other members which might disqualify them.
Any party may present evidence relating to whether grounds for challenge exist against a member.
A member shall be excused for cause whenever it appears that the member:
Is not competent to serve as a member under Article 25(a), (b), or (c);
Has not been properly detailed as a member of the court-martial;
Is an accuser as to any offense charged;
Will be a witness in the court-martial;
Has acted as counsel for any party as to any offense charged;
Has been an a preliminary hearing officer as to any offense charged;
Has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority;
Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority;
Has forwarded charges in the case with a personal recommendation as to disposition;
Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before;
Is junior to the accused in grade or rank, unless it is established that this could not be avoided;
Is in arrest or confinement;
Has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged;
Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
Discussion
Examples of matters which may be grounds for challenge under subsection
Upon completion of any examination under subsection (d) of this rule and the presentation of evidence, if any, on the matter, each party shall state any challenges for cause it elects to make.
A challenge for cause may be made at any other time during trial when it becomes apparent that a ground for challenge may exist. Such examination of the member and presentation of evidence as may be necessary may be made in order to resolve the matter.
Each party shall be permitted to make challenges outside the presence of the members. The party making a challenge shall state the grounds for it. Ordinarily the trial counsel shall enter any challenges for cause before the defense counsel. The military judge shall rule finally on each challenge. When a challenge for cause is granted, the member concerned shall be excused. The burden of establishing that grounds for a challenge exist is upon the party making the challenge. A member successfully challenged shall be excused.
The grounds for challenge in subsection (f)(1)(A) of this rule may not be waived except that membership of enlisted members in the same unit as the accused may be waived. Membership of enlisted members in the same unit as the accused and any other ground for challenge is waived if the party knew of or could have discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner. Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review.
See also Mil. R. Evid. 606(b) when a member may be a witness.
Each party may challenge one member peremptorily. Any member so challenged shall be excused. No party may be required to exercise a peremptory challenge before the examination of members and determination of any challenges for cause has been completed. Ordinarily the trial counsel shall enter any peremptory challenge before the defense.
Generally, no reason is necessary for a peremptory challenge. But see Batson v. Kentucky 476 U.S. 79 (1986); United States v. Curtis, 33 M.J. 101 (C.M.A. 1991), cert. denied, 112 S.Ct. 1177 (1992); United States v. Moore, 28 M.J. 366 (C.M.A. 1989); United States v. Santiago-Davilla, 26 M.J. 380 (C.M.A. 1988).
Failure to exercise a peremptory challenge when properly called upon to do so shall waive the right to make such a challenge. The military judge may, for good cause shown, grant relief from the waiver, but a peremptory challenge may not be made after the presentation of evidence before the members has begun. However, nothing in this subsection shall bar the exercise of a previously unexercised peremptory challenge against a member newly detailed under R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has begun.
When the membership of the court-martial has been reduced below a quorum (see R.C.M. 501) or, when enlisted members have been requested, the fraction of enlisted members has been reduced below one-third, the proceedings should be adjourned and the convening authority notified so that new members may be detailed. See R.C.M. 505. See also R.C.M. 805(d) concerning other procedures when new members are detailed.
In a special court-martial without a military judge, the procedures in this rule shall apply, except that challenges shall be made in the presence of the members and a ruling on any challenge for cause shall be decided by a majority vote of the members upon secret written ballot in closed session. The challenged member shall not be present at the closed session at which the challenge is decided. A tie vote on a challenge disqualifies the member challenged. Before closing, the president shall give such instructions as may be necessary to resolve the challenge. Each challenge shall be decided separately, and all unexcused members except the challenged member shall participate. When only three members are present and one is challenged, the remaining two may decide the challenge. When the president is challenged, the next senior member shall act as president for purposes of deciding the challenge.
For purpose of this rule, "military judge" does not include the president of a special court-martial without a military judge.
For purposes of this rule, "witness" includes one who testifies at a court-martial and anyone whose declaration is received in evidence for any purpose, including written declarations made by affidavit or otherwise.
For example, a person who by certificate has attested or otherwise authenticated an official record or other writing introduced in evidence is a witness.
For purposes of this rule, "preliminary hearing officer" includes any person who has examined charges under R.C.M. 405 and any person who was counsel for a member of a court of inquiry, or otherwise personally has conducted an investigation of the general matter involving the offenses charged.
The military judge may give such preliminary instructions as may be appropriate. If mixed pleas have been entered, the military judge should ordinarily defer informing the members of the offenses to which the accused pleaded guilty until after the findings on the remaining contested offenses have been entered.
Preliminary instructions may include a description of the duties of members, procedures to be followed in the court-martial, and other appropriate matters. Exceptions to the rule requiring the military judge to defer informing the members of an accused's prior pleas of guilty include cases in which the accused has specifically requested, on the record, that the military judge instruct the members of the prior pleas of guilty and cases in which a plea of guilty was to a lesser included offense within the contested offense charged in the specification. See R.C.M. 910(g), Discussion and R.C.M. 920(e), Discussion, paragraph 3.
Each party may make one opening statement to the court-martial before presentation of evidence has begun. The defense may elect to make its statement after the prosecution has rested, before the presentation of evidence for the defense. The military judge may, as a matter of discretion, permit the parties to address the court-martial at other times.
Counsel should confine their remarks to evidence they expect to be offered which they believe in good faith will be available and admissible and a brief statement of the issues in the case.
Each party shall have full opportunity to present evidence.
Ordinarily the following sequence shall be followed:
Presentation of evidence for the prosecution;
Presentation of evidence for the defense;
Presentation of prosecution evidence in rebuttal;
Presentation of defense evidence in surrebuttal;
Additional rebuttal evidence in the discretion of the military judge; and
Presentation of evidence requested by the military judge or members.
See R.C.M. 801(a) and Mil. R. Evid. 611 concerning control by the military judge over the order of proceedings.
The testimony of witnesses shall be taken orally in open session, unless otherwise provided in this Manual.
Each witness must testify under oath. See R.C.M. 807(b)(1)(B); Mil. R. Evid. 603. After a witness is sworn, the witness should be identified for the record (full name, rank, and unit, if military, or full name and address, if civilian). The party calling the witness conducts direct examination of the witness, followed by cross-examination of the witness by the opposing party. Redirect and re-cross-examination are conducted as necessary, followed by any questioning by the military judge and members. See Mil. R. Evid. 611; 614. All documentary and real evidence (except marks or wounds on a person's body) should be marked for identification when first referred to in the proceedings and should be included in the record of trial whether admitted in evidence or not. See R.C.M. 1103(b)(2)(C), (c). "Real evidence" include physical objects, such as clothing, weapons, and marks or wounds on a person's body. If it is impracticable to attach an item of real evidence to the record, the item should be clearly and accurately described by testimony, photographs, or other means so that it may be considered on review. Similarly, when documentary evidence is used, if the document cannot be attached to the record (as in the case of an original official record or a large map), a legible copy or accurate extract should be included in the record. When a witness points to or otherwise refers to certain parts of a map, photograph, diagram, chart, or other exhibit, the place to which the witness pointed or referred should be clearly identified for the record, either by marking the exhibit or by an accurate description of the witness' actions with regard to the exhibit.
The military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object. Such a view or inspection shall take place only in the presence of all parties, the members (if any), and the military judge. A person familiar with the scene may be designated by the military judge to escort the court-martial. Such person shall perform the duties of escort under oath. The escort shall not testify, but may point out particular features prescribed by the military judge. Any statement made at the view or inspection by the escort, a party, the military judge, or any member shall be made part of the record.
A view or inspection should be permitted only in extraordinary circumstances. The fact that a view or inspection has been made does not necessarily preclude the introduction in evidence of photographs, diagrams, maps, or sketches of the place or item viewed, if these are otherwise admissible.
When offered evidence would be subject to exclusion upon objection, the military judge may, as a matter of discretion, bring the matter to the attention of the parties and may, in the interest of justice, exclude the evidence without an objection by a party.
The military judge should not exclude evidence which is not objected to by a party except in extraordinary circumstances. Counsel should be permitted to try the case and present the evidence without unnecessary interference by the military judge. See also Mil. R. Evid. 103.
The military judge may, as a matter of discretion, permit a party to reopen its case after it has rested.
After a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is:
In the case of a witness called by the trial counsel, in the possession of the United States; or
In the case of a witness called by the defense, in the possession of the accused or defense counsel.
See also R.C.M. 701 (Discovery). Counsel should anticipate legitimate demands for statements under this and similar rules and avoid delays in the proceedings by voluntary disclosure before arraignment. This rule does not apply to investigations under Article 32. As to procedures for certain government information as to which a privilege is asserted, see Mil. R. Evid. 505; 506.
If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the military judge shall order that the statement be delivered to the moving party.
If the party who called the witness claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the military judge shall order that it be delivered to the military judge. Upon inspection, the military judge shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion of a statement that is withheld from an accused over objection shall be preserved by the trial counsel, and, in the event of a conviction, shall be made available to the reviewing authorities for the purpose of determining the correctness of the decision to excise the portion of the statement.
Upon delivery of the statement to the moving party, the military judge may recess the trial for the examination of the statement and preparation for its use in the trial.
If the other party elects not to comply with an order to deliver a statement to the moving party, the military judge shall order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall declare a mistrial if required in the interest of justice.
As used in this rule, a "statement" of a witness means:
A written statement made by the witness that is signed or otherwise adopted or approved by the witness;
A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
A statement, however taken or recorded, or a transcription thereof, made by the witness to a Federal grand jury.
A child shall be allowed to testify out of the presence of the accused after the military judge has determined that the requirements of Mil. R. Evid. 611(d)(3) have been satisfied. The procedure used to take such testimony will be determined by the military judge based upon the exigencies of the situation. At a minimum, the following procedures shall be observed:
The witness shall testify from a remote location outside the courtroom;
Attendance at the remote location shall be limited to the child, counsel for each side (not including an accused pro se), equipment operators, and other persons, such as an attendant for the child, whose presence is deemed necessary by the military judge;
Sufficient monitors shall be placed in the courtroom to allow viewing and hearing of the testimony by the military judge, the accused, the members, the court reporter and the public;
The voice of the military judge shall be transmitted into the remote location to allow control of the proceedings; and
The accused shall be permitted private, contemporaneous communication with his counsel.
As used in this rule, "remote live testimony" includes, but is not limited to, testimony by videoteleconference, closed circuit television, or similar technology.
The procedures described above shall not be used where the accused elects to absent himself from the courtroom pursuant to R.C.M. 804(c).
For purposes of this rule, unlike R.C.M. 914B, remote means or similar technology does not include receiving testimony by telephone where the parties cannot see and hear each other.
The military judge shall determine the procedures used to take testimony via remote means. At a minimum, all parties shall be able to hear each other, those in attendance at the remote site shall be identified, and the accused shall be permitted private, contemporaneous communication with his counsel.
As used in this rule, testimony via "remote means" includes, but is not limited to, testimony by videoteleconference, closed circuit television, telephone, or similar technology.
This rule applies for all witness testimony other than child witness testimony specifically covered by Mil. R. Evid. 611(d) and R.C.M. 914A. When utilizing testimony via remote means, military justice practitioners are encouraged to consult the procedure used in In re San Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D. 424 (D.P.R. 1989) and to read United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), cert. denied, 528 U.S. 1114 (2000).
The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings.
The power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons. As examples, a mistrial may be appropriate when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members or when members engage in prejudicial misconduct. Also a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect, which can be cured; for example, when the referral is jurisdictionally defective. See also R.C.M. 905(g) concerning the effect of rulings in one proceeding on later proceedings.
On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.
Except in a special court-martial without a military judge, the hearing on a mistrial should be conducted out of the presence of the members.
A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court-martial.
Upon declaration of a mistrial, the affected charges are returned to the convening authority who may refer them anew or otherwise dispose of them. See R.C.M. 401-407.
A declaration of a mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:
An abuse of discretion and without the consent of the defense; or
The direct result of intentional prosecutorial misconduct designed to necessitate a mistrial.
As used in this rule, "defenses" includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.
Special defenses are also called "affirmative defenses."
"Alibi" and "good character" are not special defenses, as they operate to deny that the accused committed one or more of the acts constituting the offense. As to evidence of the accused's good character, see Mil. R. Evid. 404(a)(1). See R.C.M. 701(b)(1) concerning notice of alibi.
Except as listed below in paragraphs (2) and (3), the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.
The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
In the defense of mistake of fact as to age as described in Article 120b(d)(2) in a prosecution of a child sexual offense, the accused has the burden of proving mistake of fact as to age by a preponderance of the evidence.
A defense may be raised by evidence presented by the defense, the prosecution, or the court-martial. For example, in a prosecution for assault, testimony by prosecution witnesses that the victim brandished a weapon toward the accused may raise a defense of self-defense. _ See_ subsection
A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.
The duty may be imposed by statute, regulation, or order. For example, the use of force by a law enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by lawful authority. Also, killing an enemy combatant in battle is justified.
It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
Ordinarily the lawfulness of an order is finally decided by the military judge. See R.C.M. 801(e). An exception might exist when the sole issue is whether the person who gave the order in fact occupied a certain position at the time. An act performed pursuant to a lawful order is justified. See subsection (c) of this rule. An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful.
It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused:
Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and
Believed that the force the accused used was necessary for protection against death or grievous bodily harm.
The words "involving deadly force" described the factual circumstances of the case, not specific assault offenses. If the accused is charged with simple assault, battery or any form of aggravated assault, or if simple assault, battery or any form of aggravated assault is in issue as a lesser included offense, the accused may rely on this subsection if the test specified in subsections (A) and (B) is satisfied. The test for the first element of self-defense is objective. Thus, the accused's apprehension of death or grievous bodily harm must have been one which a reasonable, prudent person would have held under the circumstances. Because this test is objective, such matters as intoxication or emotional instability of the accused are irrelevant. On the other hand, such matters as the relative height, weight, and general build of the accused and the alleged victim, and the possibility of safe retreat are ordinarily among the circumstances which should be considered in determining the reasonableness of the apprehension of death or grievous bodily harm. The test for the second element is entirely subjective. The accused is not objectively limited to the use of reasonable force. Accordingly, such matters as the accused's emotional control, education, and intelligence are relevant in determining the accused's actual belief as to the force necessary to repel the attack. See also Mil. R. Evid. 404(a)(2) as to evidence concerning the character of the victim.
It is a defense to assault with a dangerous weapon or means likely to produce death or grievous bodily harm that the accused:
Apprehended, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and
In order to deter the assailant, offered but did not actually apply or attempt to apply such means or force as would be likely to cause death or grievous bodily harm.
The principles in the discussion of subsection (e)(1) of this rule concerning reasonableness of the apprehension of bodily harm apply here. If, as a result of the accused's offer of a means or force likely to produce grievous bodily harm, the victim was killed or injured unintentionally by the accused, this aspect of self-defense may operate in conjunction with the defense of accident (see subsection (f) of this rule) to excuse the accused's acts. The death or injury must have been an unintended and unexpected result of the accused's exercise of the right of self-defense.
It is a defense to any assault punishable under Article 90, 91, or 128 and not listed in subsections (e)(1) or (2) of this rule that the accused:
Apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and
Believed that the force that accused used was necessary for protection against bodily harm, provided that the force used by the accused was less than force reasonably likely to produce death or grievous bodily harm.
The principles in the discussion under subsection (e)(1) apply here. If, in using only such force as the accused was entitled to use under this aspect of self-defense, death or serious injury to the victim results, this aspect of self-defense may operate in conjunction with the defense of accident
(see subsection (f) of this rule) to excuse the accused's acts. The death or serious injury must have been an unintended and unexpected result of the accused's proper exercise of the right of self-defense.
The right to self-defense is lost and the defenses described in subsections (e)(1), (2), and (3) of this rule shall not apply if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred.
A person does not become an aggressor or provocateur merely because that person approaches another to seek an interview, even if the approach is not made in a friendly manner. For example, one may approach another and demand an explanation of offensive words or redress of a complaint. If the approach is made in a nonviolent manner, the right to self-defense is not lost. Failure to retreat, when retreat is possible, does not deprive the accused of the right to self-defense if the accused was lawfully present. The availability of avenues of retreat is one factor which may be considered in addressing the reasonableness of the accused's apprehension of bodily harm and the sincerity of the accused's belief that the force used was necessary for self-protection.
The principles of self-defense under subsection (e)(1) through (4) of this rule apply to defense of another. It is a defense to homicide, attempted homicide, assault with intent to kill, or any assault under Article 90, 91, or 128 that the accused acted in defense of another, provided that the accused may not use more force than the person defended was lawfully entitled to use under the circumstances.
The accused acts at the accused's peril when defending another. Thus, if the accused goes to the aid of an apparent assault victim, the accused is guilty of any assault the accused commits on the apparent assailant if, unbeknownst to the accused, the apparent victim was in fact the aggressor and not entitled to use self-defense.
A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable.
The defense of accident is not available when the act which caused the death, injury, or event was a negligent act.
It is a defense that the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.
The "Government" includes agents of the Government and persons cooperating with them (for example, informants). The fact that persons acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials. When the defense of entrapment is raised, evidence of uncharged misconduct by the accused of a nature similar to that charged is admissible to show predisposition. See Mil. R. Evid. 404(b).
It is a defense to any offense except killing an innocent person that the accused's participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.
The immediacy of the harm necessary may vary with the circumstances. For example, a threat to kill a person's wife the next day may be immediate if the person has no opportunity to contact law enforcement officials or otherwise protect the intended victim or avoid committing the offense before then.
It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty.
The test of inability is objective in nature. The accused's opinion that a physical impairment prevented performance of the duty will not suffice unless the opinion is reasonable under all the circumstances. If the physical or financial inability of the accused occurred through the accused's own fault or design, it is not a defense. For example, if the accused, having knowledge of an order to get a haircut, spends money on other nonessential items, the accused's inability to pay for the haircut would not be a defense.
Except as otherwise provided in this subsection, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, if the accused's knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.
It is a defense to a prosecution for Article 120b(b), sexual assault of a child, and Article 120b(c), sexual abuse of a child, that, at the time of the offense, the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years. The accused must prove this defense by a preponderance of the evidence.
Examples of ignorance or mistake which need only exist in fact include: ignorance of the fact that the person assaulted was an officer; belief that property allegedly stolen belonged to the accused; belief that a controlled substance was really sugar. Examples of ignorance or mistake which must be reasonable as well as actual include: belief that the accused charged with unauthorized absence had permission to go; belief that the accused had a medical "profile" excusing shaving as otherwise required by regulation. Some offenses require special standards of conduct (see, for example, paragraph 68, Part IV, Dishonorable failure to maintain sufficient funds); the element of reasonableness must be applied in accordance with the standards imposed by such offenses. Examples of offenses in which the accused's intent or knowledge is immaterial include: any rape of a child, or any sexual assault or sexual abuse of a child when the child is under 12 years old. However, such ignorance or mistake may be relevant in extenuation and mitigation. See subsection (l)(1) of this rule concerning ignorance or mistake of law.
It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.
See R.C.M. 706 concerning sanity inquiries; R.C.M. 909 concerning the capacity of the accused to stand trial; and R.C.M. 1102A concerning any post-trial hearing for an accused found not guilty only by reason of lack of mental responsibility.
A mental condition not amounting to a lack of mental responsibility under subsection (k)(1) of this rule is not an affirmative defense.
Evidence of a mental condition not amounting to a lack of mental responsibility may be admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense. The defense must notify the trial counsel before the beginning of trial on the merits if the defense intends to introduce expert testimony as to the accused's mental condition. See R.C.M. 701(b)(2).
The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.
The accused is presumed to be mentally responsible, and this presumption continues throughout the proceedings unless the finder of fact determines that the accused has proven lack of mental responsibility by clear and convincing evidence. See subsection (b) of this rule.
If a question is raised concerning the mental responsibility of the accused, the military judge shall rule finally whether to direct an inquiry under R.C.M. 706. In a special court-martial without a military judge, the president shall rule finally except to the extent that the question is one of fact, in which case the president rules subject to objection by any member.
See R.C.M. 801(e)(3) for the procedures for voting on rulings of the president of a special court-martial without a military judge. If an inquiry is directed, priority should be given to it.
The issue of mental responsibility shall not be considered as an interlocutory question.
Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.
For example, ignorance that it is a crime to possess marijuana is not a defense to wrongful possession of marijuana. Ignorance or mistake of law may be a defense in some limited circumstances. If the accused, because of a mistake as to a separate nonpenal law, lacks the criminal intent or state of mind necessary to establish guilt, this may be a defense. For example, if the accused, under mistaken belief that the accused is entitled to take an item under property law, takes an item, this mistake of law (as to the accused's legal right) would, if genuine, be a defense to larceny. On the other hand, if the accused disobeyed an order, under the actual but mistaken belief that the order was unlawful, this would not be a defense because the accused's mistake was as to the order itself, and not as to a separate nonpenal law. Also, mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency. For example, if an accused, acting on the advice of an official responsible for administering benefits that the accused is entitled to those benefits, applies for and receives those benefits, the accused may have a defense even though the accused was not legally eligible for the benefits. On the other hand, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense.
Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.
Intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offense. See paragraph 43c(2)(c), Part IV. Although voluntary intoxication is not a defense, evidence of voluntary intoxication may be admitted in extenuation.
The military judge, on motion by the accused or sua sponte , shall enter a finding of not guilty of one or more offenses charged after the evidence on either side is closed and before findings on the general issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected. If a motion for a finding of not guilty at the close of the prosecution's case is denied, the defense may offer evidence on that offense without having reserved the right to do so.
The motion shall specifically indicate wherein the evidence is insufficient.
Before ruling on a motion for a finding of not guilty, whether made by counsel or sua sponte, the military judge shall give each party an opportunity to be heard on the matter.
The military judge ordinarily should permit the trial counsel to reopen the case as to the insufficiency specified in the motion. See R.C.M. 801(e)(2) and (3) for additional procedures to be followed in a special court-martial without a military judge. See R.C.M. 1102(b)(2) for the military judge's authority, upon motion or sua sponte, to enter finding of not guilty after findings but prior to authentication of the record.
A motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses.
A motion for a finding of not guilty may be granted as to part of a specification and, if appropriate, the corresponding charge, as long as a lesser offense charged is alleged in the portion of the specification as to which the motion is not granted. In such cases, the military judge shall announce that a finding of not guilty has been granted as to specified language in the specification and, if appropriate, corresponding charge. In cases before members, the military judge shall instruct the members accordingly, so that any findings later announced will not be inconsistent with the granting of the motion.
A ruling granting a motion for a finding of not guilty is final when announced and may not be reconsidered. Such a ruling is a finding of not guilty of the affected specification, or affected portion thereof, and, when appropriate, of the corresponding charge. A ruling denying a motion for a finding of not guilty may be reconsidered at any time prior to authentication of the record of trial.
If all the evidence admitted before findings, regardless by whom offered, is sufficient to sustain findings of guilty, the findings need not be set aside upon review solely because the motion for finding of not guilty should have been granted upon the state of the evidence when it was made.
The general findings of a court-martial state whether the accused is guilty of each offense charged. If two or more accused are tried together, separate findings as to each shall be made.
General findings as to a specification may be: guilty; not guilty of an offense as charged, but guilty of a named lesser included offense; guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any; not guilty only by reason of lack of mental responsibility; or, not guilty. Exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.
Exceptions and Substitutions. One or more words or figures may be excepted from a specification and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions, states an offense by the accused which is punishable by the court-martial. Changing the date or place of the offense may, but does not necessarily, change the nature or identity of an offense. If A and B are joint accused and A is convicted but B is acquitted of an offense charged, A should be found guilty by excepting the name of B from the specification as well as any other words indicating the offense was a joint one. Lesser Included Offenses. If the evidence fails to prove the offense charged but does prove an offense necessarily included in the offense charged, the fact finder may find the accused not guilty of the offense charged but guilty of the lesser included offense. See paragraph 3 of Part IV concerning lesser included offenses. Offenses arising from the same act or transaction. The accused may be found guilty of two or more offenses arising from the same act or transaction, whether or not the offenses are separately punishable. But see R.C.M. 906(b)(12); 907(b)(3)(B); 1003(c)(1)(C).
General findings as to a charge may be: guilty; not guilty, but guilty of a violation of Article ; not guilty only by reason of lack of mental responsibility; or not guilty.
Where there are two or more specifications under one charge, conviction of any of those specifications requires a finding of guilty of the corresponding charge. Under such circumstances any findings of not guilty as to the other specifications do not affect that charge. If the accused is found guilty of one specification and of a lesser included offense prohibited by a different Article as to another specification under the same charge, the findings as to the corresponding charge should be: "Of the Charge as to specification 1: Guilty; as to specification 2: not guilty, but guilty of a violation of Article ." An attempt should be found as a violation of Article 80 unless the attempt is punishable under Articles 85, 94, 100, 104, or 128, in which case it should be found as a violation of that Article. A court-martial may not find an offense as a violation of an article under which it was not charged solely for the purpose of increasing the authorized punishment or for the purpose of adjudging less than the prescribed mandatory punishment.
In a trial by court-martial composed of military judge alone, the military judge shall make special findings upon request by any party. Special findings may be requested only as to matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the accused was found guilty. Special findings may be requested at any time before general findings are announced. Only one set of special findings may be requested by a party in a case. If the request is for findings on specific matters, the military judge may require that the request be written. Special findings may be entered orally on the record at the court-martial or in writing during or after the court-martial, but in any event shall be made before authentication and included in the record of trial.
Special findings ordinarily include findings as to the elements of the offenses of which the accused has been found guilty, and any affirmative defense relating thereto. See also R.C.M. 905(d); Mil. R. Evid. 304(d)(4); 311(d)(4); 321(f) concerning other findings to be made by the military judge. Members may not make special findings.
Findings may be based on direct or circumstantial evidence. Only matters properly before the court-martial on the merits of the case may be considered. A finding of guilty of any offense may be reached only when the factfinder is satisfied that guilt has been proved beyond a reasonable doubt.
Direct evidence is evidence which tends directly to prove or disprove a fact in issue (for example, an element of the offense charged). Circumstantial evidence is evidence which tends directly to prove not a fact in issue but some other fact or circumstance from which, either alone or together with other facts or circumstances, one may reasonably infer the existence or nonexistence of a fact in issue. There is no general rule for determining or comparing the weight to be given to direct or circumstantial evidence. A reasonable doubt is a doubt based on reason and common sense. A reasonable doubt is not mere conjecture; it is an honest, conscientious doubt suggested by the evidence, or lack of it, in the case. An absolute or mathematical certainty is not required. The rule as to reasonable doubt extends to every element of the offense. It is not necessary that each particular fact advanced by the prosecution which is not an element be proved beyond a reasonable doubt. The factfinder should consider the inherent probability or improbability of the evidence, using common sense and knowledge of human nature, and should weigh the credibility of witnesses. A fact finder may properly believe one witness and disbelieve others whose testimony conflicts with that of the one. A factfinder may believe part of the testimony of a witness and disbelieve other parts. Findings of guilty may not be based solely on the testimony of a witness other than the accused which is self-contradictory, unless the contradiction is adequately explained by the witness. Even if apparently credible and corroborated, the testimony of an accomplice should be considered with great caution.
After the closing of evidence, trial counsel shall be permitted to open the argument. The defense counsel shall be permitted to reply. Trial counsel shall then be permitted to reply in rebuttal.
Arguments may properly include reasonable comment on the evidence in the case, including inferences to be drawn therefrom, in support of a party's theory of the case.
The military judge may exercise reasonable control over argument. See R.C.M. 801(a)(3).
Argument may include comment about the testimony, conduct, motives, interests, and biases of witnesses to the extent supported by the evidence. Counsel should not express a personnel belief or opinion as to the truth or falsity of any testimony or evidence or the guilt or innocence of the accused, nor should counsel make arguments calculated to inflame passions or prejudices. In argument counsel may treat the testimony of witnesses as conclusively establishing the facts related by the witnesses. Counsel may not cite legal authorities or the facts of other cases when arguing to members on findings. Trial counsel may not comment on the accused's exercise of the right against self-incrimination or the right to counsel. See Mil. R. Evid. 512. Trial counsel may not argue that the prosecution's evidence is unrebutted if the only rebuttal could come from the accused. When the accused is on trial for several offenses and testifies only as to some of the offenses, trial counsel may not comment on the accused's failure to testify as to the others. When the accused testifies on the merits regarding an offense charged, trial counsel may comment on the accused's failure in that testimony to deny or explain specific incriminating facts that the evidence for the prosecution tends to establish regarding that offense. Trial counsel may not comment on the failure of the defense to call witnesses or of the accused to testify at the Article 32 preliminary hearing or upon the probable effect of the court-martial's findings on relations between the military and civilian communities. The rebuttal argument of trial counsel is generally limited to matters argued by the defense. If trial counsel is permitted to introduce new matter in closing argument, the defense should be allowed to reply in rebuttal. However, this will not preclude trial counsel from presenting a final argument.
Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.
If an objection that an argument is improper is sustained, the military judge should immediately instruct the members that the argument was improper and that they must disregard it. In extraordinary cases improper argument may require a mistrial. See R.C.M. 915. The military judge should be alert to improper argument and take appropriate action when necessary.
The military judge shall give the members appropriate instructions on findings.
Instructions consist of a statement of the issues in the case and an explanation of the legal standards and procedural requirements by which the members will determine findings. Instructions should be tailored to fit the circumstances of the case, and should fairly and adequately cover the issues presented.
Instructions on findings shall be given before or after arguments by counsel, or at both times, and before the members close to deliberate on findings, but the military judge may, upon request of the members, any party, or sua sponte, give additional instructions at a later time.
After members have reached a finding on a specification, instructions may not be given on an offense included therein which was not described in an earlier instruction unless the finding is illegal. This is true even if the finding has not been announced. When instructions are to be given is a matter within the sole discretion of the military trial judge.
At the close of the evidence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party shall be given the opportunity to be heard on any proposed instruction on findings before it is given. The military judge shall inform the parties of the proposed action on such requests before their closing arguments.
Requests for and objections to instructions should be resolved at an Article 39(a) session. But see R.C.M 801(e)(3); 803. If an issue has been raised, ordinarily the military judge must instruct on the issue when requested to do so. The military judge is not required to give the specific instruction requested by counsel, however, as long as the issue is adequately covered in the instructions. The military judge should not identify the source of any instruction when addressing the members. All written requests for instructions should be marked as appellate exhibits, whether or not they are given.
Instructions on findings shall be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or, unless a party objects, portions of them, may also be given to the members for their use during deliberations.
A copy of any written instructions delivered to the members should be marked as an appellate exhibit.
Instructions on findings shall include:
A description of the elements of each offense charged, unless findings on such offenses are unnecessary because they have been entered pursuant to a plea of guilty;
A description of the elements of each lesser included offense in issue, unless trial of a lesser included offense is barred by the statute of limitations (Article 43) and the accused refuses to waive the bar;
A description of any special defense under R.C.M. 916 in issue;
A direction that only matters properly before the court-martial may be considered;
A charge that-
The accused must be presumed to be innocent until the accused's guilt is established by legal and competent evidence beyond reasonable doubt;
In the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted;
If, when a lesser included offense is in issue, there is a reasonable doubt as to the degree of guilt of the accused, the finding must be in a lower degree as to which there is not reasonable doubt; and
The burden of proof to establish the guilt of the accused is upon the Government. [When the issue of lack of mental responsibility is raised, add: The burden of proving the defense of lack of mental responsibility by clear and convincing evidence is upon the accused. When the issue of mistake of fact under R.C.M. 916(j)(2) is raised, add: The accused has the burden of proving the defense of mistake of fact as to age by a preponderance of the evidence.]
Directions on the procedures under R.C.M. 921 for deliberations and voting; and
Such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.
A matter is "in issue" when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose. An instruction on a lesser included offense is proper when an element from the charged offense which distinguishes thatoffense from the lesser offense is in dispute. See R.C.M. 918(c) and discussion as to reasonable doubt and other matters relating to the basis for findings which may be the subject of an instruction. Other matters which may be the subject of instruction in appropriate cases included: inferences (see the explanations in Part IV concerning inferences relating to specific offenses); the limited purpose for which evidence was admitted (regardless of whether such evidence was offered by the prosecution of defense) (see Mil. R. Evid. 105); the effect of character evidence (see Mil. R. Evid. 404; 405); the effect of judicial notice (see Mil. R. Evid. 201, 201A); the weight to be given a pretrial statement (see Mil. R. Evid. 340(e)); the effect of stipulations (see R.C.M. 811); that, when a guilty plea to a lesser included offense has been accepted, the members should accept as proved the matters admitted by the plea, but must determine whether the remaining elements are established; that a plea of guilty to one offense may not be the basis for inferring the existence of a fact or element of another offense; the absence of the accused from trial should not be held against the accused; and that no adverse inferences may be drawn from an accused's failure to testify (see Mil. R. Evid. 301(g)). The military judge may summarize and comment upon evidence in the case in instructions. In doing so, the military judge should present an accurate, fair, and dispassionate statement of what the evidence shows; not depart from an impartial role; not assume as true the existence or nonexistence of a fact in issue when the evidence is conflicting or disputed, or when there is no evidence to support the matter; and make clear that the members must exercise their independent judgment as to the facts.
Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify of what respect the instructions given were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.
After the military judge instructs the members on findings, the members shall deliberate and vote in a closed session. Only the members shall be present during deliberations and voting. Superiority in rank shall not be used in any manner in an attempt to control the independence of members in the exercise of their judgment.
Deliberations properly include full and free discussion of the merits of the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such request.
Voting on the findings for each charge and specification shall be by secret written ballot. All members present shall vote.
A finding of guilty of an offense for which the death penalty is mandatory results only if all members present vote for a finding of guilty.
Article 106 is the only offense under the code for which the death penalty is mandatory.
As to any offense for which the death penalty is not mandatory, a finding of guilty results only if at least two-thirds of the members present vote for a finding of guilty.
In computing the number of votes required to convict, any fraction of a vote is rounded up to the next whole number. For example, if there are five members, the concurrence of at least four would be required to convict. The military judge should instruct the members on the specific number of votes required to convict.
If fewer than two-thirds of the members present vote for a finding of guilty-or, when the death penalty is mandatory, if fewer than all the members present vote for a finding of guilty-a finding of not guilty has resulted as to the charge or specification on which the vote was taken.
When the defense of lack of mental responsibility is in issue under R.C.M. 916(k)(1), the members shall first vote on whether the prosecution has proven the elements of the offense beyond a reasonable doubt. If at least two-thirds of the members present (all members for offenses where the death penalty is mandatory) vote for a finding of guilty, then the members shall vote on whether the accused has proven lack of mental responsibility. If a majority of the members present concur that the accused has proven lack of mental responsibility by clear and convincing evidence, a finding of not guilty only by reason of lack of mental responsibility results. If the vote on lack of mental responsibility does not result in a finding of not guilty only by reason of lack of mental responsibility, then the defense of lack of mental responsibility has been rejected and the finding of guilty stands.
If lack of mental responsibility is in issue with regard to more than one specification, the members should determine the issue of lack of mental responsibility on each specification separately.
Members shall not vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached. If a finding of not guilty of an offense charged has been reached the members shall vote on each included offense on which they have been instructed, in order of severity beginning with the most severe. The members shall continue the vote on each included offense on which they have been instructed until a finding of guilty results or findings of not guilty have been reached as to each such offense.
Each specification shall be voted on separately before the corresponding charge. The order of voting on several specifications under a charge or on several charges shall be determined by the president unless a majority of the members object.
The junior member shall collect the ballots and count the votes. The president shall check the count and inform the other members of the result.
Once findings have been reached, they may be reconsidered only in accordance with R.C.M. 924.
After the members have reached findings on each charge and specification before them, the court-martial shall be opened and the president shall inform the military judge that findings have been reached. The military judge may, in the presence of the parties, examine any writing which the president intends to read to announce the findings and may assist the members in putting the findings in proper form. Neither that writing nor any oral or written clarification or discussion concerning it shall constitute announcement of the findings.
Ordinarily a findings worksheet should be provided to the members as an aid to putting the findings in proper form. See Appendix 10 for a format for findings. If the military judge examines any writing by the members or otherwise assists them to put findings in proper form, this must be done in an open session and counsel should be given the opportunity to examine such a writing and to be heard on any instructions the military judge may give. See Article 39(b). The president should not disclose any specific number of votes for or against any finding.
Findings shall be announced in the presence of all parties promptly after they have been determined.
See Appendix 10. A finding of an offense about which no instructions were given is not proper.
The president shall announce the findings by the members.
If a finding is based on a plea of guilty, the president shall so state.
In a capital case, if a finding of guilty is unanimous with respect to a capital offense, the president shall so state. This provision shall not apply during reconsideration under R.C.M. 924(a) of a finding of guilty previously announced in open court unless the prior finding was announced as unanimous.
If the findings announced are ambiguous, the military judge should seek clarification. See also R.C.M. 924. A nonunanimous finding of guilty as to a capital offense may be reconsidered, but not for the purpose of rendering a unanimous verdict in order to authorize a capital sentencing proceeding. The president shall not make a statement regarding unanimity with respect to reconsideration of findings as to an offense in which the prior findings were not unanimous.
The military judge shall announce the findings when trial is by military judge alone or when findings may be entered upon R.C.M. 910(g).
If an error was made in the announcement of the findings of the court-martial, the error may be corrected by a new announcement in accordance with this rule. The error must be discovered and the new announcement made before the final adjournment of the court-martial in the case.
See R.C.M. 1102 concerning the action to be taken if the error in the announcement is discovered after final adjournment.
Except as provided in Mil. R. Evid. 606, members may not be questioned about their deliberations and voting.
Findings which are proper on their face may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.
Deliberations of the members ordinarily are not subject to disclosure. See Mil. R. Evid. 606. Unsound reasoning by a member, misconception of the evidence, or misapplication of the law is not a proper basis for challenging the findings. However, when a showing of a ground for impeaching the verdict has been made, members may be questioned about such a ground. The military judge determines, as an interlocutory matter, whether such an inquiry will be conducted and whether a finding has been impeached.
Members may reconsider any finding reached by them before such finding is announced in open session.
Any member may propose that a finding be reconsidered. If such a proposal is made in a timely manner the question whether to reconsider shall be determined in closed session by secret written ballot. Any finding of not guilty shall be reconsidered if a majority vote for reconsideration. Any finding of guilty shall be reconsidered if more than one-third of the members vote for reconsideration. When the death penalty is mandatory, a request by any member for reconsideration of a guilty finding requires reconsideration. Any finding of not guilty only by reason of lack of mental responsibility shall be reconsidered on the issue of the finding of guilty of the elements if more than one-third of the members vote for reconsideration, and on the issue of mental responsibility if a majority vote for reconsideration. If a vote to reconsider a finding succeeds, the procedures in R.C.M. 921 shall apply.
After the initial secret ballot vote on a finding in closed session, no other vote may be taken on that finding unless a vote to reconsider succeeds.
In trial by military judge alone, the military judge may reconsider any finding of guilty at any time before announcement of sentence and may reconsider the issue of the finding of guilty of the elements in a finding of not guilty only by reason of lack of mental responsibility at any time before announcement of sentence or authentication of the record of trial in the case of a complete acquittal.
After findings of guilty have been announced, the prosecution and defense may present matter pursuant to this rule to aid the court-martial in determining an appropriate sentence. Such matter shall ordinarily be presented in the following sequence-
service data relating to the accused taken from the charge sheet;
personal data relating to the accused and of the character of the accused's prior service as reflected in the personnel records of the accused;
evidence of prior convictions, military or civilian;
evidence of aggravation; and
evidence of rehabilitative potential.
Victim's right to be reasonably heard. See R.C.M. 1001A.
Presentation by the defense of evidence in extenuation or mitigation or both.
Rebuttal.
Argument by trial counsel on sentence.
Argument by defense counsel on sentence.
Rebuttal arguments in the discretion of the military judge.
A sentence shall be adjudged in all cases without unreasonable delay.
The military judge shall personally inform the accused of the right to present matters in extenuation and mitigation, including the right to make a sworn or unsworn statement or to remain silent, and shall ask whether the accused chooses to exercise those rights.
Trial counsel shall inform the court-martial of the data on the charge sheet relating to the pay and service of the accused and the duration and nature of any pretrial restraint. In the discretion of the military judge, this may be done by reading the material from the charge sheet or by giving the court-martial a written statement of such matter. If the defense objects to the data as being materially inaccurate or incomplete, or containing specified objectionable matter, the military judge shall determine the issue. Objections not asserted are waived.
Under regulations of the Secretary concerned, trial counsel may obtain and introduce from the personnel records of the accused evidence of the accused's marital status; number of dependents, if any; and character of prior service. Such evidence includes copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under Article 15. "Personnel records of the accused" includes any records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the accused objects to a particular document as inaccurate or incomplete in a specified respect, or as containing matter that is not admissible under the Military Rules of Evidence, the matter shall be determined by the military judge. Objections not asserted are waived.
The trial counsel may introduce evidence of military or civilian convictions of the accused. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been adjudged. In a civilian case, a "conviction" includes any disposition following an initial judicial determination or assumption of guilt, such as when guilt has been established by guilty plea, trial, or plea of nolo contendere, regardless of the subsequent disposition, sentencing procedure, or final judgment. However, a "civilian conviction" does not include a diversion from the judicial process without a finding or admission of guilt; expunged convictions; juvenile adjudications; minor traffic violations; foreign convictions; tribal court convictions; or convictions reversed, vacated, invalidated or pardoned because of errors of law or because of subsequently discovered evidence exonerating the accused.
A vacation of a suspended sentence (see R.C.M. 1109) is not a conviction and is not admissible as such, but may be admissible under subsection (b)(2) of this rule as reflective of the character of the prior service of the accused. Whether a civilian conviction is admissible is left to the discretion of the military judge. As stated in the rule, a civilian "conviction" includes any disposition following an initial judicial determination or assumption of guilt regardless of the sentencing procedure and the final judgment following probation or other sentence. Therefore, convictions may be admissible regardless of whether a court ultimately suspended judgment upon discharge of the accused following probation, permitted withdrawal of the guilty plea, or applies some other form of alternative sentencing. Additionally, the term "conviction" need not be taken to mean a final judgment of conviction and sentence.
The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of this rule until review has been completed pursuant to Article 64 or Article 66, if applicable. Evidence of the pendency of an appeal is admissible.
Previous convictions may be proved by any evidence admissible under the Military Rules of Evidence.
Normally, previous convictions may be proved by use of the personnel records of the accused, by the record of the conviction, or by the order promulgating the result of trial. See DD Form 493 (Extract of Military Records of Previous Convictions).
The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused's offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. Except in capital cases a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation.
See also R.C.M. 1004 concerning aggravating circumstances in capital cases.
Rehabilitative potential refers to the accused's potential to be restored, through vocational, correctional, or therapeutic training or other corrective measures to a useful and constructive place in society.
The trial counsel may present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence in the form of opinions concerning the accused's previous performance as a servicemember and potential for rehabilitation.
The witness or deponent providing opinion evidence regarding the accused's rehabilitative potential must possess sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority. Relevant information and knowledge include, but are not limited to, information and knowledge about the accused's character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offense or offenses.
See generally Mil. R. Evid. 701, Opinion testimony by lay witnesses. See also Mil. R. Evid. 703, Bases of opinion testimony by experts, if the witness or deponent is testifying as an expert. The types of information and knowledge reflected in this subparagraph are illustrative only.
An opinion regarding the accused's rehabilitative potential must be based upon relevant information and knowledge possessed by the witness or deponent, and must relate to the accused's personal circumstances. The opinion of the witness or deponent regarding the severity or nature of the accused's offense or offenses may not serve as the principal basis for an opinion of the accused's rehabilitative potential.
An opinion offered under this rule is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused's unit.
On direct examination, a witness or deponent may respond affirmatively or negatively regarding whether the accused has rehabilitative potential. The witness or deponent may also opine succinctly regarding the magnitude or quality of the accused rehabilitative potential; for example, the witness or deponent may opine that the accused has "great" or "little" rehabilitative potential. The witness or deponent, however, generally may not further elaborate on the accused's rehabilitative potential, such as describing the particular reasons for forming the opinion.
On cross-examination, inquiry is permitted into relevant and specific instances of conduct.
Notwithstanding any other provision in this rule, the scope of opinion testimony permitted on redirect may be expanded, depending upon the nature and scope of the cross-examination.
For example, on redirect a witness or deponent may testify regarding specific instances of conduct when the cross-examination of the witness or deponent concerned specific instances of misconduct. Similarly, for example, on redirect a witness or deponent may offer an opinion on matters beyond the scope of the accused's rehabilitative potential if an opinion about such matters was elicited during cross-examination of the witness or deponent and is otherwise admissible.
The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation regardless whether the defense offered evidence before findings.
Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.
Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember.
The accused may testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused testified prior to findings. The accused may limit such testimony or statement to any one or more of the specifications of which the accused has been found guilty. This subsection does not permit the filing of an affidavit of the accused.
The accused may give sworn oral testimony under this paragraph and shall be subject to cross-examination concerning it by the trial counsel or examination on it by the court-martial, or both.
The accused may make an unsworn statement and may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial. The prosecution may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both.
An unsworn statement ordinarily should not include what is properly argument, but inclusion of such matter by the accused when personally making an oral statement normally should not be grounds for stopping the statement.
The military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may include admitting letters, affidavits, certificates of military and civil officers, and other writings of similar authenticity and reliability.
The prosecution may rebut matters presented by the defense. The defense in surrebuttal may then rebut any rebuttal offered by the prosecution. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the Military Rules of Evidence were relaxed under subsection (c)(3) of this rule, they may be relaxed during rebuttal and surrebuttal to the same degree.
During the presentence proceedings, there shall be much greater latitude than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses. Whether a witness shall be produced to testify during presentence proceedings is a matter within the discretion of the military judge, subject to the limitations in subsection
(e)(2) of this rule.
See R.C.M. 703 concerning the procedures for production of witnesses.
A witness may be produced to testify during presentence proceedings through a subpoena or travel orders at Government expense only if-
The testimony expected to be offered by the witness is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence, including evidence necessary to resolve an alleged inaccuracy or dispute as to a material fact;
The weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence;
The other party refuses to enter into a stipulation of fact containing the matters to which the witness is expected to testify, except in an extraordinary case when such a stipulation of fact would be an insufficient substitute for the testimony;
Other forms of evidence, such as oral depositions, written interrogatories, former testimony, or testimony by remote means would not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence; and
The significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production of the witness. Factors to be considered include the costs of producing the witness, the timing of the request for production of the witness, the potential delay in the presentencing proceeding that may be caused by the production of the witness, and the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.
The procedures for receiving testimony via remote means and the definition thereof are contained in R.C.M. 914B.
In addition to matters introduced under this rule, the court-martial may consider-
That a plea of guilty is a mitigating factor; and
Any evidence properly introduced on the merits before findings, including:
Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and
Evidence relating to any mental impairment or deficiency of the accused.
The fact that the accused is of low intelligence or that, because of a mental or neurological condition the accused's ability to adhere to the right is diminished, may be extenuating. On the other hand, in determining the severity of a sentence, the court-martial may consider evidence tending to show that an accused has little regard for the rights of others.
After introduction of matters relating to sentence under this rule, counsel for the prosecution and defense may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection.
A victim, victims' counsel, or designee has no right to present argument under this rule.
A crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at a sentencing hearing relating to that offense. A victim under this rule is not considered a witness for purposes of Article 42(b). Trial counsel shall ensure the victim is aware of the opportunity to exercise that right. If the victim exercises the right to be reasonably heard, the victim shall be called by the court. This right is independent of whether the victim testified during findings or is called to testify under R.C.M. 1001.
For purposes of this rule, a "crime victim" is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty.
For the purposes of this rule, "victim impact" includes any financial, social, psychological, or medical impact on the victim directly relating to or arising from the offense of which the accused has been found guilty.
For the purposes of this rule, "mitigation" includes a matter to lessen the punishment to be adjudged by the court-martial or to furnish grounds for a recommendation of clemency.
In capital cases, for purposes of this rule, the "right to be reasonably heard" means the right to make a sworn statement.
In non-capital cases, for purposes of this rule, the "right to be reasonably heard" means the right to make a sworn or unsworn statement.
The content of statements made under subsections (d) and (e) of this rule may include victim impact or matters in mitigation.
The victim may give a sworn statement under this rule and shall be subject to cross-examination concerning it by the trial counsel or defense counsel or examination on it by the court-martial, or all or any of the three. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the sworn statement may be made by the victim's designee appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 years of age may elect to make a sworn statement.
The victim may make an unsworn statement and may not be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial. The prosecution or defense may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the unsworn statement may be made by the victim's designee appointed under R.C.M. 801(a)(6). Additionally, a victim under 18 years of age may elect to make an unsworn statement.
After the announcement of findings, a victim who would like to present an unsworn statement shall provide a copy to the trial counsel, defense counsel, and military judge. The military judge may waive this requirement for good cause shown.
When the military judge waives the notice requirement under this rule, the military judge may conduct a session under Article 39(a) to ascertain the content of the victim's anticipated unsworn statement.
If there are numerous victims, the military judge may reasonably limit the form of the statements provided. A victim's unsworn statement should not exceed what is permitted under R.C.M. 1001A(c) and may not include a recommendation of a specific sentence. Upon objection by either party or sua sponte, a military judge may stop or interrupt a victim's unsworn statement that includes matters outside the scope of R.C.M. 1001A(c). A victim, victim's counsel, or designee has no separate right to present argument under R.C.M. 1001(g).
Subject to limitations in this Manual, the sentence to be adjudged is a matter within the discretion of the court-martial; except when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual, including the maximum punishment or any lesser punishment, or may adjudge a sentence of no punishment.
See R.C.M. 1003 concerning authorized punishments and limitations on punishments. See also R.C.M. 1004 in capital cases.
Subject to the limitations in this Manual, the punishments authorized in this rule may be adjudged in the case of any person found guilty of an offense by a court-martial.
"Any person" includes officers, enlisted persons, person in custody of the armed forces serving a sentence imposed by a court-martial, and, insofar as the punishments are applicable, any other person subject to the code. See R.C.M. 202.
The maximum limits for the authorized punishments of confinement, forfeitures and punitive discharge (if any) are set forth for each offense listed in Part IV of this Manual. These limitations are for each separate offense, not for each charge. When a dishonorable discharge is authorized, a bad-conduct discharge is also authorized.
Except as otherwise specifically provided in this Manual, the types of punishments listed in subsections (b)(1), (3), (4), (5), (6) and (7) of this rule may be adjudged in addition to or instead of confinement, forfeitures, a punitive discharge (if authorized), and death (if authorized).
When the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense, unless the military judge finds that the offenses are either multiplicious or unreasonably multiplied.
A charge is multiplicious and must be dismissed if the proof of such charge also proves every element of another charged offense unless Congress intended to impose multiple punishments for the same act.
If the military judge finds that there is an unreasonable multiplication of charges as applied to sentence, the maximum punishment for those offenses shall be the maximum authorized punishment for the offense carrying the greatest maximum punishment. The military judge may either merge the offenses for sentencing, or dismiss one or more of the charges.
Discussion
See also R.C.M. 906(b)(12); 907(b)(3)(B). Even if charges are not multiplicious, a military judge may rule on a motion that the prosecutor abused his discretion under R.C.M. 307(c)(4) or a motion that an unreasonable multiplication of charges requires relief under R.C.M. 1003(b)(1). Rather than the "single impulse" test previously noted in this Discussion, "[t]he better approach is to allow the military judge, in his or her discretion, to merge the offenses for sentencing purposes..." by determining whether the Quiroz test is fulfilled. United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012). (citing United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). Multiplicity is addressed in R.C.M. 907(b)(3)(B). Unreasonable multiplication of charges is addressed in R.C.M. 906(b)(12).
A commissioned or warrant officer or a cadet, or midshipman may not be reduced in grade by any court-martial. However, in time of war or national emergency the Secretary concerned, or such Under Secretary or Assistant Secretary as may be designated by the Secretary concerned, may commute a sentence of dismissal to reduction to any enlisted grade.
Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or midshipman to confinement.
A commissioned or warrant officer or a cadet or midshipman may not be sentenced to hard labor without confinement.
Only a general court-martial, upon conviction of any offense in violation of the Code, may sentence a commissioned or warrant officer or a cadet or midshipman to be separated from the service with a punitive separation. In the case of commissioned officers, cadets, midshipmen, and commissioned warrant officers, the separation shall be by dismissal. In the case of all other warrant officers, the separation shall by dishonorable discharge.
See subsection (b)(9) of this rule and R.C.M. 1301(d).
A member of a reserve component whose order to active duty is approved pursuant to Article 2(d)(5) may be required to serve any adjudged restriction on liberty during that period of active duty. Other members of a reserve component ordered to active duty pursuant to Article 2(d)(1) or tried by summary court-martial while on inactive duty training may not-
by sentenced to confinement; or
be required to serve a court-martial punishment consisting of any other restriction on liberty except during subsequent periods of inactive-duty training or active duty.
A sentence to forfeiture of pay of a member not retained on active duty after completion of disciplinary proceedings may be collected from active duty and inactive-duty training pay during subsequent periods of duty.
For application of this subsection, see R.C.M. 204. At the conclusion of nonjudicial punishment proceedings or final adjournment of the court-martial, the reserve component member who was ordered to active duty for the purpose of conducting disciplinary proceedings should be released from active duty within one working day unless the order to active duty was approved by the Secretary concerned and confinement or other restriction on liberty was adjudged. Unserved punishments may be carried over to subsequent periods of inactive-duty training or active duty.
In the case of a person serving with or accompanying an armed force in the field, no court-martial may adjudge forfeiture of pay and allowances, reduction in pay grade, hard labor without confinement, or a punitive separation.
The maximum limits on punishments in this rule may be further limited by other Rules of Courts-martial.
The maximum punishment may be limited by: the jurisdictional limits of the court-martial (see R.C.M. 201(f) and 1301(d)); the nature of the proceedings (see R.C.M. 810(d) (sentence limitations in rehearings, new trials, and other trials)); and by instructions by a convening authority (see R.C.M. 601(e)(1)). See also R.C.M. 1107(d)(4) concerning limits on the maximum punishment which may be approved depending on the nature of the record.
If an accused is found guilty of an offense or offenses for none of which a dishonorable discharge is otherwise authorized, proof of three or more previous convictions adjudged by a court-martial during the year next preceding the commission of any offense of which the accused stands convicted shall authorize a dishonorable discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than 1 year, confinement for 1 year. In computing the 1-year period preceding the commission of any offense, periods of unauthorized absence shall be excluded. For purposes of this subsection, the court-martial convictions must be final.
If an accused is found guilty of an offense or offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, proof of two or more previous convictions adjudged by a court-martial during the 3 years next preceding the commission of any offense of which the accused stands convicted shall authorize a bad-conduct discharge and forfeiture of all pay and allowances and, if the confinement otherwise authorized is less than 3 months, confinement for 3 months. In computing the 3 year period preceding the commission of any offense, periods of unauthorized absence shall be excluded. For purposes of this subsection the court-martial convictions must be final.
If an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, the fact that the authorized confinement for these offenses totals 6 months or more shall, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances.
All of these increased punishments are subject to all other limitations on punishments set forth elsewhere in this rule. Convictions by summary court-martial may not be used to increase the maximum punishment under this rule. However they may be admitted and considered under R.C.M. 1001.
Death may be adjudged only when:
Death is expressly authorized under Part IV of this Manual for an offense of which the accused has been found guilty or is authorized under the law of war for an offense of which the accused has been found guilty under the law of war; and
The accused was convicted of such an offense by the concurrence of all the members of the court-martial present at the time the vote was taken; and
The requirements of subsections (b) and (c) of this rule have been met.
In addition to the provisions in R.C.M. 1001, the following procedures shall apply in capital cases-
The convening authority shall indicate that the case is to be tried as a capital case by including a special instruction in the referral block of the charge sheet. Failure to include this special instruction at the time of the referral shall not bar the convening authority from later adding the required special instruction, provided:
that the convening authority has otherwise complied with the notice requirement of subsection (B); and
that if the accused demonstrates specific prejudice from such failure to include the special instruction, a continuance or a recess is an adequate remedy.
(B) Arraignment.
Before arraignment, trial counsel shall give the defense written notice of which aggravating factors under subsection (c) of this rule the prosecution intends to prove. Failure to provide timely notice under this subsection of any aggravating factors under subsection (c) of this rule shall not bar later notice and proof of such additional aggravating factors unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.
Trial counsel may present evidence in accordance with R.C.M. 1001(b)(4) tending to establish one or more of the aggravating factors in subsection
See also subsection (b)(5) of this rule.
The accused shall be given broad latitude to present evidence in extenuation and mitigation.
See R.C.M. 1001(c).
Death may not be adjudged unless-
The members find that at least one of the aggravating factors under subsection (c) existed;
Notice of such factor was provided in accordance with paragraph
The findings in subsection (b)(4) of this rule may be based on evidence introduced before or after findings under R.C.M. 921, or both.
In addition to the instructions required under R.C.M. 1005, the military judge shall instruct the members of such aggravating factors under subsection (c) of this rule as may be in issue in the case, and on the requirements and procedures under subsections (b)(4), (5), (7), and (8) of this rule. The military judge shall instruct the members that they must consider all evidence in extenuation and mitigation before they may adjudge death.
In closed session, before voting on a sentence, the members shall vote by secret written ballot separately on each aggravating factor under subsection (c) of this rule on which they have been instructed. Death may not be adjudged unless all members concur in a finding of the existence of at least one such aggravating factor. After voting on all the aggravating factors on which they have been instructed, the members shall vote on a sentence in accordance with R.C.M. 1006.
If death is adjudged, the president shall, in addition to complying with R.C.M. 1007, announce which aggravating factors under subsection (c) of this rule were found by the members.
Death may be adjudged only if the members find, beyond a reasonable doubt, one or more of the following aggravating factors:
See paragraph 23, Part IV, for a definition of "before or in the presence of the enemy."
Knowingly created a grave risk of substantial damage to the national security of the United States; or
Knowingly created a grave risk of substantial damage to a mission, system, or function of the United States, provided that this subparagraph shall apply only if substantial damage to the national security of the United States would have resulted had the intended damage been effected;
That the offense caused substantial damage to the national security of the United States, whether or not the accused intended such damage, except that this factor shall not apply in case of a violation of Article 118 or 120;
That the offense was committed in such a way or under circumstances that the life of one or more persons other than the victim was unlawfully and substantially endangered, except that this factor shall not apply to a violation of Articles 104, 106a, or 120;
That the accused committed the offense with the intent to avoid hazardous duty;
That, only in the case of a violation of Article 118 or 120, the offense was committed in time of war and in territory in which the United States or an ally of the United States was then an occupying power or in which the armed forces of the United States were then engaged in active hostilities;
That, only in the case of a violation of Article 118(1):
The accused was serving a sentence of confinement for 30 years or more or for life at the time of the murder;
The murder was committed: while the accused was engaged in the commission or attempted commission of any robbery, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, aggravated arson, forcible sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an aircraft or vessel; or while the accused was engaged in the commission or attempted commission of any offense involving the wrongful distribution, manufacture, or introduction or possession, with intent to distribute, of a controlled substance; or, while the accused was engaged in flight or attempted flight after the commission or attempted commission of any such offense.
The murder was committed for the purpose of receiving money or a thing of value;
The accused procured another by means of compulsion, coercion, or a promise of an advantage, a service, or a thing of value to commit the murder;
The murder was committed with the intent to avoid or to prevent lawful apprehension or effect an escape from custody or confinement;
The victim was the President of the United States, the President-elect, the Vice President, or, if there was no Vice President, the officer in the order of succession to the office of President of the United States, the Vice-President-elect, or any individual who is acting as President under the Constitution and laws of the United States, any Member of Congress (including a Delegate to, or Resident Commissioner in, the Congress) or Member-of-Congress elect, justice or judge of the United States, a chief of state or head of government (or the political equivalent) of a foreign nation, or a foreign official (as such term is defined in section 1116(b)(3)(A) of title 18, United States Code), if the official was on official business at the time of the offense and was in the United States or in a place described in Mil. R. Evid.315(c)(2), 315(c)(3);
The accused then knew that the victim was any of the following persons in the execution of office: a commissioned, warrant, noncommissioned, or petty officer of the armed services of the United States; a member of any law enforcement or security activity or agency, military or civilian, including correctional custody personnel; or any firefighter;
The murder was committed with intent to obstruct justice;
The murder was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim. For purposes of this section, "substantial physical harm" means fractures or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, or other serious bodily injuries. The term "substantial physical harm" does not mean minor injuries, such as a black eye or bloody nose. The term "substantial mental or physical pain or suffering" is accorded its common meaning and includes torture.
The accused has been found guilty in the same case of another violation of Article 118;
The victim of the murder was under 15 years of age.
Conduct amounts to "reckless indifference" when it evinces a wanton disregard of consequences under circumstances involving grave danger to the life of another, although no harm is necessarily intended. The accused must have had actual knowledge of the grave danger to others or knowledge of circumstances that would cause a reasonable person to realize the highly dangerous character of such conduct. In determining whether participation in the offense was major, the accused's presence at the scene and the extent to which the accused aided, abetted, assisted, encouraged, or advised the other participants should be considered. See United States v. Berg , 31 M.J. 38 (C.M.A. 1990); _ United States v. McMonagle _ 38 M.J. 53 (C.M.A. 1993).
Under Article 120b, the victim was under the age of 12; or
Under Articles 120 or 120b, the accused maimed or attempted to kill the victim;
That, only in the case of a violation of the law of war, death is authorized under the law of war for the offense;
That, only in the case of a violation of Article 104 or 106a:
The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute; or
That in committing the offense, the accused knowingly created a grave risk of death to a person other than the individual who was the victim. For purposes of this rule, "national security" means the national defense and foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without.
Examples of substantial damage of the national security of the United States include: impeding the performance of a combat mission or operation; impeding the performance of an important mission in a hostile fire or imminent danger pay area (see 37 U.S.C. § 310(a)); and disclosing military plans, capabilities, or intelligence such as to jeopardize any combat mission or operation of the armed services of the United States or its allies or to materially aid an enemy of the United States.
If the accused has been found guilty of spying under Article 106, subsections (a)(2), (b), and (c) of this rule and R.C.M. 1006 and 1007 shall not apply. Sentencing proceedings in accordance with R.C.M. 1001 shall be conducted, but the military judge shall announce that by operation of law a sentence of death has been adjudged.
Except for a violation of Article 106, when death is an authorized punishment for an offense, all other punishments authorized under R.C.M. 1003 are also authorized for that offense, including confinement for life, with or without eligibility for parole, and may be adjudged in lieu of the death penalty, subject to limitations specifically prescribed in this Manual. A sentence of death includes a dishonorable discharge or dismissal as appropriate. Confinement is a necessary incident of a sentence of death, but not a part of it.
A sentence of death may not be ordered executed until approved by the President. See R.C.M. 1207. A sentence to death which has been finally ordered executed will be carried out in the manner prescribed by the Secretary concerned. See R.C.M. 1113(e)(1).
The military judge shall give the members appropriate instructions on sentence.
Instructions should be tailored to the facts and circumstances of the individual case.
Instructions on sentence shall be given after arguments by counsel and before the members close to deliberate on sentence, but the military judge may, upon request of the members, any party, or sua sponte , give additional instructions at a later time.
After presentation of matters relating to sentence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party shall be given the opportunity to be heard on any proposed instruction on sentence before it is given. The military judge shall inform the parties of the proposed action on such requests before their closing arguments on sentence.
Requests for and objections to instructions should be resolved at an Article 39(a) session. But see R.C.M. 801(e)(1)(C); 803. The military judge is not required to give the specific instruction requested by counsel if the matter is adequately covered in the instructions. The military judge should not identify the source of any instruction when addressing the members. All written requests for instructions should be marked as appellate exhibits, whether or not they are given.
Instructions on sentence shall be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or unless a party objects, portions of them, may also be given to the members for their use during deliberations.
A copy of any written instructions delivered to the members should be marked as an appellate exhibit.
Instructions on sentence shall include:
The maximum punishment that may be adjudged is the lowest of the total permitted by the applicable paragraph(s) in Part IV for each separate offense of which the accused was convicted (see also R.C.M. 1003 concerning additional limits on punishments and additional punishments which may be adjudged) or the jurisdictional limit of the court-martial (see R.C.M. 201(f) and R.C.M. 1301(d)). See also Discussion to R.C.M. 810(d). The military judge may upon request or when otherwise appropriate instruct on lesser punishments. See R.C.M. 1003. If an additional punishment is authorized under R.C.M. 1003(d), the members must be informed of the basis for the increased punishment. A carefully drafted sentence worksheet ordinarily should be used and should include reference to all authorized punishments in the case.
A statement of the effect any sentence announced including a punitive discharge and confinement, or confinement in excess of six months, will have on the accused's entitlement to pay and allowances;
A statement of the procedures for deliberation and voting on the sentence set out in R.C.M. 1006;
See also R.C.M. 1004 concerning additional instructions required in capital cases.
See also R.C.M. 1002.
For example, tailored instructions on sentencing should bring attention to the reputation or record of the accused in the service for good conduct, efficiency, fidelity, courage, bravery, or other traits of good character, and any pretrial restraint imposed on the accused.
Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.
The members shall deliberate and vote after the military judge instructs the members on sentence. Only the members shall be present during deliberations and voting. Superiority in rank shall not be used in any manner to control the independence of members in the exercise of their judgment.
Deliberations may properly include full and free discussion of the sentence to be imposed in the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such requests.
Any member may propose a sentence. Each proposal shall be in writing and shall contain the complete sentence proposed. The junior member shall collect the proposed sentences and submit them to the president.
A proposal should state completely each kind and, where appropriate, amount of authorized punishment proposed by that member. For example, a proposal of confinement for life would state whether it is with or without eligibility for parole. See R.C.M.1003(b).
Each member has the duty to vote for a proper sentence for the offenses of which the court-martial found the accused guilty, regardless of the member's vote or opinion as to the guilt of the accused.
Proposed sentences shall be voted on by secret written ballot.
All members shall vote on each proposed sentence in its entirety beginning with the least severe and continuing, as necessary, with the next least severe, until a sentence is adopted by the concurrence of the number of members required under subsection (d)(4) of this rule. The process of proposing sentences and voting on them may be repeated as necessary until a sentence is adopted.
The junior member shall collect the ballots and count the votes. The president shall check the count and inform the other members of the result.
A sentence adopted by the required number of members may be reconsidered only in accordance with R.C.M. 1009.
A sentence which includes death may be adjudged only if all members present vote for that sentence.
See R.C.M. 1004.
than 10 years. A sentence that includes confinement for life, with or without eligibility for parole, or more than 10 years may be adjudged only if at least three-fourths of the members present vote for that sentence.
A sentence other than those described in subsection (d)(4)(A) or
In computing the number of votes required to adopt a sentence, any fraction of a vote is rounded up to the next whole number. For example, if there are seven members, at least six would have to concur to impose a sentence requiring a three-fourths vote, while at least five would have to concur to impose a sentence requiring a two-thirds vote.
When a mandatory minimum is prescribed under Article 118 the members shall vote on a sentence in accordance with this rule.
If the required number of members do not agree on a sentence after a reasonable effort to do so, a mistrial may be declared as to the sentence and the case shall be returned to the convening authority, who may order a rehearing on sentence only or order that a sentence of no punishment be imposed.
After the members have agreed upon a sentence, the court-martial shall be opened and the president shall inform the military judge that a sentence has been reached. The military judge may, in the presence of the parties, examine any writing which the president intends to read to announce the sentence and may assist the members in putting the sentence in proper form. Neither that writing nor any oral or written clarification or discussion concerning it shall constitute announcement of the sentence.
Ordinarily a sentence worksheet should be provided to the members as an aid to putting the sentence in proper form. See Appendix 11 for a format for forms of sentences. If a sentence worksheet has been provided, the military judge should examine it before the president announces the sentence. If the military judge intends to instruct the members after such examination, counsel should be permitted to examine the worksheet and to be heard on any instructions the military judge may give. The president should not disclose any specific number of votes for or against any sentence. If the sentence is ambiguous or apparently illegal, _ see_ R.C.M. 1009.
The sentence shall be announced by the president or, in a court-martial composed of a military judge alone, by the military judge, in the presence of all parties promptly after it has been determined.
See Appendix 11. An element of a sentence adjudged by members about which no instructions were given and which is not listed on a sentence worksheet is not proper.
If the announced sentence is not the one actually determined by the court-martial, the error may be corrected by a new announcement made before the record of trial is authenticated and forwarded to the convening authority. This action shall not constitute reconsideration of the sentence. If the court-martial has been adjourned before the error is discovered, the military judge may call the court-martial into session to correct the announcement.
For procedures governing reconsideration of the sentence, see R.C.M. 1009. See also R.C.M. 1102 concerning the action to be taken if the error in the announcement is discovered after the record is authenticated and forwarded to the convening authority.
Except as provided in Mil. R. Evid. 606, members may not otherwise be questioned about their deliberations and voting.
A sentence which is proper on its face may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.
See R.C.M. 923 Discussion concerning impeachment of findings.
Subject to this rule, a sentence may be reconsidered at any time before such sentence is announced in open session of the court.
If the sentence announced in open session was less than the mandatory minimum prescribed for an offense of which the accused has been found guilty, the court that announced the sentence may reconsider such sentence upon reconsideration in accordance with subsection (e) of this rule.
If the sentence announced in open session exceeds the maximum permissible punishment for the offense or the jurisdictional limitation of the court-martial, the sentence may be reconsidered after announcement in accordance with subsection
A sentence may be clarified at any time prior to action of the convening authority on the case.
When a sentence adjudged by the military judge is ambiguous, the military judge shall call a session for clarification as soon as practical after the ambiguity is discovered.
When a sentence adjudged by members is ambiguous, the military judge shall bring the matter to the attention of the members if the matter is discovered before the court-martial is adjourned. If the matter is discovered after adjournment, the military judge may call a session for clarification by the members who adjudged the sentence as soon as practical after the ambiguity is discovered.
Any member of the court-martial may propose that a sentence reached by the members be reconsidered.
When a sentence has been reached by members and reconsideration has been initiated, the military judge shall instruct the members on the procedure for reconsideration.
The members shall vote by secret written ballot in closed session whether to reconsider a sentence already reached by them.
Subject to subsection (b) of this rule, members may reconsider a sentence with a view of increasing it only if at least a majority vote for reconsideration.
Members may reconsider a sentence with a view to decreasing it only if:
In the case of a sentence which includes death, at least one member votes to reconsider;
In the case of a sentence which includes confinement for life, with or without eligibility for parole, or more than 10 years, more than one-fourth of the members vote to reconsider; or;
In the case of any other sentence, more than one-third of the members vote to reconsider.
Discussion
After a sentence has been adopted by secret ballot vote in closed session, no other vote may be taken on the sentence unless a vote to reconsider succeeds. For example, if six of nine (two-thirds) members adopt a sentence, a vote of at least five would be necessary to reconsider to increase it; four would have to vote to reconsider in order to decrease it. If seven of nine (three-fourths) members is required to adopt a sentence, a vote of at least five would be necessary to reconsider to increase it, while three would be necessary to reconsider to decrease it.
If a vote to reconsider a sentence succeeds, the procedures in R.C.M. 1006 shall apply.
In each general and special court-martial, prior to adjournment, the military judge shall ensure that the defense counsel has informed the accused orally and in writing of:
The right to submit matters to the convening authority to consider before taking action;
The right to appellate review, as applicable, and the effect of waiver or withdrawal of such right;
The right to apply for relief from the Judge Advocate General if the case is neither reviewed by a Court of Criminal Appeals nor reviewed by the Judge Advocate General under R.C.M. 1201(b)(1); and
The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them. The written advice to the accused concerning post-trial and appellate rights shall be signed by the accused and the defense counsel and inserted in the record of trial as an appellate exhibit.
The post-trial duties of the defense counsel concerning the appellate rights of the accused are set forth in paragraph (E)(iv) of the Discussion accompanying R.C.M. 502(d)(6). The defense counsel shall explain the appellate rights to the accused and prepare the written document of such advisement prior to or during trial.
The military judge may adjourn the court-martial at the end of the trial of an accused or proceed to trial of other cases referred to that court-martial. Such an adjournment may be for a definite or indefinite period.
A court-martial and its personnel have certain powers and responsibilities following the trial. See, for example, R.C.M. 502(d)(5) Discussion
(F); 502(d)(6) Discussion (E); 808; 1007; 1009; Chapter XI.
forfeitures and reduction in grade; waiver of Article 58b forfeitures
After final adjournment of the court-martial in a case, the trial counsel shall promptly notify the accused's immediate commander, the convening authority or the convening authority's designee, and, if appropriate, the officer in charge of the confinement facility of the findings and sentence.
An accused may be placed in post-trial confinement if the sentence adjudged by the court-martial includes death or confinement.
Unless limited by superior authority, a commander of the accused may order the accused into post-trial confinement when post-trial confinement is authorized under subsection (b)(1) of this rule. A commander authorized to order post-trial confinement under this subsection may delegate this authority to the trial counsel.
The commander may release the accused, order confinement, or order other appropriate restraint. Regardless whether the accused is ordered into confinement, a sentence to confinement begins to run on the date it is adjudged unless it is deferred under subsection (c) of this rule. See Article 57.
Nothing in this rule shall prohibit confinement of a person after a court-martial on proper grounds other than the offenses for which the accused was tried at the court-martial.
See R.C.M. 304, 305, and paragraph 5b(2), Part V, for other grounds for confinement.
Deferment of a sentence to confinement, forfeitures, or reduction in grade is a postponement of the running of the sentence.
Deferment is not suspension of the sentence or a form of clemency.
The convening authority or, if the accused is no longer in the convening authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is assigned, may, upon written application of the accused, at any time after the adjournment of the court-martial, defer the accused's service of a sentence to confinement, forfeitures, or reduction in grade that has not been ordered executed.
The authority acting on the deferment request may, in that authority's discretion, defer service of a sentence to confinement, forfeitures, or reduction in grade. The accused shall have the burden of showing that the interests of the accused and the community in deferral outweigh the community's interests in imposition of the punishment on its effective date. Factors that the authority acting on a deferment request may consider in determining whether to grant the deferment request include, where applicable: the probability of the accused's flight; the probability of the accused's commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command's immediate need for the accused; the effect of deferment on good order and discipline in the command; the accused's character, mental condition, family situation, and service record. The decision of the authority acting on the deferment request shall be subject to judicial review only for abuse of discretion. The action of the authority acting on the deferment request shall be in writing and a copy shall be provided to the accused.
The deferment request and the action on the request must be attached to the record of trial. See R.C.M. 1103(b)(3)(D). If the request for deferment is denied, the basis for the denial should be in writing and attached to the record of trial.
The action granting deferment shall be reported in the convening authority's action under R.C.M. 1107(f)(4)(E) and shall include the date of the action on the request when it occurs prior to or concurrently with the action. Action granting deferment after the convening authority's action under R.C.M. 1107 shall be reported in orders under R.C.M. 1114 and included in the record of trial.
When deferment of confinement is granted, no form of restraint or other limitation on the accused's liberty may be ordered as a substitute form of punishment. An accused may, however, be restricted to specified limits or conditions may be placed on the accused's liberty during the period of deferment for any other proper reason, including a ground for restraint under R.C.M. 304.
Deferment of a sentence to confinement, forfeitures, or reduction in grade ends when:
The convening authority takes action under R.C.M. 1107, unless the convening authority specifies in the action that service of confinement after the action is deferred;
The confinement, forfeitures, or reduction in grade are suspended;
The deferment expires by its own terms; or
The deferment is otherwise rescinded in accordance with subsection (c)(7) of this rule. Deferment of confinement may not continue after the conviction is final under R.C.M. 1209.
When the sentence is ordered executed, forfeitures or reduction in grade may be suspended, but may not be deferred; deferral of confinement may continue after action in accordance with R.C.M. 1107. A form of punishment cannot be both deferred and suspended at the same time. When deferment of confinement, forfeitures, or reduction in grade ends, the sentence to confinement, forfeitures, or reduction in grade begins to run or resumes running, as appropriate. When the convening authority has specified in the action that confinement will be deferred after the action, the deferment may not be terminated, except under subsections (6)(B), (C), or (D), until the conviction is final under R.C.M. 1209. See R.C.M. 1203 for deferment of a sentence to confinement pending review under Article 67(a)(2).
The authority who granted the deferment or, if the accused is no longer within that authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is assigned, may rescind the deferment.
Deferment of confinement, forfeitures, or reduction in grade may be rescinded when additional information is presented to a proper authority which, when considered with all other information in the case, that authority finds, in that authority's discretion, is grounds for denial of deferment under subsection (c)(3) of this rule. The accused shall promptly be informed of the basis for the rescission and of the right to submit written matters in the accused's behalf and to request that the rescission be reconsidered. However, the accused may be required to serve the sentence to confinement, forfeitures, or reduction in grade pending this action.
When deferment of confinement is rescinded after the convening authority's action under R.C.M. 1107, the confinement may be ordered executed. However, no such order to rescind a deferment of confinement may be issued within 7 days of notice of the rescission of a deferment of confinement to the accused under subsection (c)(7)(B) of this rule, to afford the accused an opportunity to respond. The authority rescinding the deferment may extend this period for good cause shown. The accused shall be credited with any confinement actually served during this period.
Rescission of a deferment before or concurrently with the initial action in the case shall be reported in the action under R.C.M. 1107(f)(4)(E), which action shall include the dates of the granting of the deferment and the rescission. Rescission of a deferment of confinement after the convening authority's action shall be reported in supplementary orders in accordance with R.C.M. 1114 and shall state whether the approved period of confinement is to be executed or whether all or part of it is to be suspended.
See Appendix 16 for forms.
for dependent support.
With respect to forfeiture of pay and allowances resulting only by operation of law and not adjudged by the court, the convening authority may waive, for a period not to exceed six months, all or part of the forfeitures for the purpose of providing support to the accused's dependent(s). The convening authority may waive and direct payment of any such forfeitures when they become effective by operation of Article 57(a).
Factors that may be considered by the convening authority in determining the amount of forfeitures, if any, to be waived include, but are not limited to, the length of the accused's confinement, the number and age(s) of the accused's family members, whether the accused requested waiver, any debts owed by the accused, the ability of the accused's family members to find employment, and the availability of transitional compensation for abused dependents permitted under 10 U.S.C. 1059.
For the purposes of this Rule, a "dependent" means any person qualifying as a "dependent" under 37 U.S.C. 401.
Forfeitures resulting by operation of law, rather than those adjudged as part of a sentence, may be waived for six months or for the duration of the period of confinement, whichever is less. The waived forfeitures are paid as support to dependent(s) designated by the convening authority. When directing waiver and payment, the convening authority should identify by name the dependent(s) to whom the payments will be made and state the number of months for which the waiver and payment shall apply. In cases where the amount to be waived and paid is less than the jurisdictional limit of the court, the monthly dollar amount of the waiver and payment should be stated.
Post-trial sessions may be proceedings in revision or Article 39(a) sessions. Such sessions may be directed by the military judge or the convening authority in accordance with this rule.
Proceedings in revision may be directed to correct an apparent error, omission, or improper or inconsistent action by the court-martial, which can be rectified by reopening the proceedings without material prejudice to the accused.
Because the action at a proceeding in revision is corrective, a proceeding in revision may not be conducted for the purpose of presenting additional evidence. Examples when a proceeding in revision is appropriate include: correction of an ambiguous or apparently illegal action by the court-martial; inquiry into the terms of a pretrial agreement; and inquiry to establish the accused's awareness of certain rights. See also R.C.M. 1104(d) concerning correction of the record by certificate of correction.
An Article 39(a) session under this rule may be called, upon motion of either party or sua sponte by the military judge, for the purpose of inquiring into, and, when appropriate, resolving any matter that arises after trial and that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to authentication of the record of trial, enter a finding of not guilty of one or more offenses charged, or may enter a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the remaining portion of the specification. Prior to entering such a finding or findings, the military judge shall give each party an opportunity to be heard on the matter in a post-trial Article 39(a) session.
For example, an Article 39(a) session may be called to permit a military judge to reconsider a trial ruling, or to examine allegations of misconduct by a counsel, a member, or a witness. See R.C.M. 917(d) for the standard to be used to determine the legal sufficiency of evidence.
Post-trial session may not be directed:
For reconsideration of a finding of not guilty of any specification, or a ruling which amounts to a finding of not guilty;
For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of the code; or
For increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory.
The military judge may direct a post-trial session any time before the record is authenticated. The convening authority may direct a post-trial session any time before the convening authority takes initial action on the case or at such later time as the convening authority is authorized to do so by a reviewing authority.
The requirements of R.C.M. 505 and 805 shall apply at post-trial sessions except that-
The absence of any members does not invalidate the proceedings if, in the case of a general court-martial, at least five members are present, or, in the case of a special court-martial, at least three members are present; and
A different military judge may be detailed, subject to R.C.M. 502(c) and 902, if the military judge who presided at the earlier proceedings is not reasonably available.
The military judge shall take such action as may be appropriate, including appropriate instructions when members are present. The members may deliberate in closed session, if necessary, to determine what corrective action, if any, to take. Prior to the military judge sua sponte entering a finding of not guilty of one or more offenses charged or entering a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the remaining portion of the specification, the military judge shall give each party an opportunity to be heard on the matter.
All post-trial sessions, except any deliberations by the members, shall be held in open session. The record of the post-trial sessions shall be prepared, authenticated, and served in accordance with R.C.M. 1103 and 1104 and shall be included in the record of the prior proceedings.
of mental responsibility
The military judge shall conduct a hearing not later than forty days following the finding that an accused is not guilty only by reason of a lack of mental responsibility.
Prior to the hearing, the military judge or convening authority shall order a psychiatric or psychological examination of the accused, with the resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial hearing.
The accused shall be represented by defense counsel and shall have the opportunity to testify, present evidence, call witnesses on his or her behalf, and to confront and cross-examine witnesses who appear at the hearing.
The military judge is not bound by the rules of evidence except with respect to privileges.
An accused found not guilty only by reason of a lack of mental responsibility of an offense involving bodily injury to another, or serious damage to the property of another, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his or her release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. With respect to any other offense, the accused has the burden of such proof by a preponderance of the evidence.
If, after the hearing, the military judge finds the accused has satisfied the standard specified in subsection (3) of this section, the military judge shall inform the general court-martial convening authority of this result and the accused shall be released. If, however, the military judge finds after the hearing that the accused has not satisfied the standard specified in subsection (3) of this section, then the military judge shall inform the general court-martial convening authority of this result and that authority may commit the accused to the custody of the Attorney General.
Each general, special, and summary court-martial shall keep a separate record of the proceedings in each case brought before it.
The trial counsel shall:
Under the direction of the military judge, cause the record of trial to be prepared; and
Under regulations prescribed by the Secretary concerned, cause to be retained stenographic or other notes or mechanical or electronic recordings from which the record of trial was prepared.
The record of trial in each general court-martial shall be separate, complete, and independent of any other document.
Except as otherwise provided in subsection (j) of this rule, the record of trial shall include a verbatim transcript of all sessions except sessions closed for deliberations and voting when:
Any part of the sentence adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than six months or other punishments that may be adjudged by a special court-martial; or
A bad-conduct discharge has been adjudged.
Discussion
A verbatim transcript includes: all proceedings including sidebar conferences, arguments of counsel, and rulings and instructions by the military judge; matter which the military judge orders stricken from the record or disregarded; and when a record is amended in revision proceedings ( see R.C.M. 1102), the part of the original record changed and the changes made, without physical alteration of the original record. Conferences under R.C.M. 802 need not be recorded, but matters agreed upon at such conferences must be included in the record. If testimony is given through an interpreter, a verbatim transcript must so reflect.
If a verbatim transcript is not required under subsection (b)(2)(B) of this rule, a summarized report of the proceedings may be prepared instead of a verbatim transcript.
See also R.C.M. 910(i) concerning guilty plea inquiries.
In addition to the matter required under subsection (b)(2)(B) or (b)(2)(C) of this rule, a complete record shall include:
The original charge sheet or a duplicate;
A copy of the convening order and any amending order(s);
The request, if any, for trial by military judge alone, or that the membership of the court-martial include enlisted persons, and, when applicable, any statement by the convening authority required under R.C.M. 201(f)(2)(B)(ii) or 503(a)(2);
The original dated, signed action by the convening authority; and
Exhibits, or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were received in evidence and any appellate exhibits.
The following matters shall be attached to the record:
The report of preliminary hearing under Article 32, if any;
The staff judge advocate's pretrial advice under Article 34, if any;
If the trial was a rehearing or new or other trial of the case, the record of the former hearing(s); and
Written special findings, if any, by the military judge.
Exhibits or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were marked for and referred to on the record but not received in evidence;
Any matter filed by the accused under R.C.M. 1105, or any written waiver of the right to submit such matter;
Any deferment request and the action on it;
Explanation for any substitute authentication under R.C.M. 1104(a)(2)(B);
Explanation for any failure to serve the record of trial on the accused under R.C.M. 1104(b);
The post-trial recommendation of the staff judge advocate or legal officer and proof of service on defense counsel in accordance with R.C.M. 1106(f)(1);
Any response by defense counsel to the post-trial review;
Recommendations and other papers relative to clemency;
Any statement why it is impracticable for the convening authority to act;
Conditions of suspension, if any, and proof of service on probationer under R.C.M. 1108;
Any waiver or withdrawal of appellate review under R.C.M. 1110; and
Records of any proceedings in connection with vacation of suspension under R.C.M. 1109.
Documents pertaining to the receipt of the record of trial by the victim pursuant to subsection (g)(3) of this rule.
Per R.C.M. 1114(f), consult service regulations for distribution of promulgating orders.
or forfeiture of pay for more than six months. The requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(D), and (b)(3) of this rule shall apply in a special court-martial in which a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, has been adjudged.
If the special court-martial resulted in findings of guilty but a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, was not adjudged, the requirements of subsections
(b)(1), (b)(2)(D), and (b)(3)(A)-(F) and (I)-(M) of this rule shall apply.
The summary court-martial record of trial shall be prepared as prescribed in R.C.M. 1305.
Notwithstanding subsections (b), (c), and (d) of this rule, if proceedings resulted in an acquittal of all charges and specifications or in a finding of not guilty only by reason of lack of mental responsibility of all charges and specifications, or if the proceedings were terminated by withdrawal, mistrial, or dismissal before findings, or if the proceedings were terminated after findings by approval of an administrative discharge in lieu of court-martial, the record may consist of the original charge sheet, a copy of the convening order and amending orders (if any), and sufficient information to establish jurisdiction over the accused and the offenses (if not shown on the charge sheet). The convening authority or higher authority may prescribe additional requirements.
The notes or recordings of court-martial proceedings described in this subsection should be retained if reinstitution and re-referral of the affected charges is likely or when they may be necessary for the trial of another accused in a related case. See R.C.M. 905(g) and 914.
If, because of loss of recordings or notes, or other reasons, a verbatim transcript cannot be prepared when required by subsection (b)(2)(B) or (c)(1) of this rule, a record which meets the requirements of subsection
(b)(2)(C) of this rule shall be prepared, and the convening authority may:
Approve only so much of the sentence that could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved; or
Direct a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record, provided that the convening authority may not approve any sentence imposed at such a rehearing more severe than or in excess of that adjudged by the earlier court-martial.
In general and special courts-martial that require a verbatim transcript under subsections (b) or (c) of this rule and are subject to a review by a Court of Criminal Appeals under Article 66, the trial counsel shall cause to be prepared an original record of trial.
An original record of trial includes any record of the proceedings recorded in a form that satisfies the definition of a "writing" in R.C.M. 103. Any requirement to prepare a printed record of trial pursuant to this rule, either in lieu of or in addition to a record of trial recorded or compiled in some other format, including electronic or digital formats, is subject to service regulation.
The convening or higher authority may direct that additional copies of the record of trial of any general or special court-martial be prepared.
Copies of the summary court-martial record of trial shall be prepared as prescribed in R.C.M. 1305(b).
For the purposes of this rule, a victim is a person who suffered a direct physical, emotional, or pecuniary harm as a result of matters set forth in a charge or specification; and is named in a specification under Article 120, Article 120b, Article 120c, Article 125, or any attempt to commit such offense in violation of Article 80.
In a general or special court-martial, a copy of the record of trial shall be given free of charge to a victim as defined in subparagraph (A) for a specification identified in subparagraph (A) that resulted in any finding under R.C.M. 918 (a)(1). If a victim is a minor, a copy of the record of trial shall instead be provided to the parent or legal guardian of the victim.
This rule is not intended to limit the Services' discretion to provide records of trial to other individuals.
In accordance with regulations of the Secretary concerned, and no later than authentication of the record, trial counsel shall cause each qualifying victim to be notified of the opportunity to receive a copy of the record of trial. Qualifying victims may decline receipt of such documents in writing and any written declination shall be attached to the original record of trial.
For purposes of this subsection, the record of trial shall consist of documents described in subsection (b)(2) of this rule, except for proceedings described in subsection (e) of this rule, in which case the record of trial shall consist of items described in subsection (e). Matters attached to the record as described in subsection (b)(3) of this rule are not required to be provided.
Subsections (b)(3)(N) and (g)(3) of this rule were added to implement Article 54(e), UCMJ, in compliance with the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 586). Service of a copy of the record of trial on a victim is prescribed in R.C.M. 1104 (b)(1)(E).
If the record of trial contains matter which must be classified under applicable security regulations, the trial counsel shall cause a proper security classification to be assigned to the record of trial and on each page thereof on which classified material appears.
See R.C.M. 1104(b)(1)(D) concerning the disposition of records of trial requiring security protection.
In general and special courts-martial, the trial counsel shall examine the record of trial before authentication and cause those changes to be made which are necessary to report the proceedings accurately. The trial counsel shall not change the record after authentication.
The trial counsel may personally correct and initial the necessary changes or, if major changes are necessary, direct the reporter to rewrite the entire record or the portion of the record which is defective. The trial counsel must ensure that the reporter makes a true, complete, and accurate record of the proceedings such that the record will meet the applicable requirements of this rule.
Except when unreasonable delay will result, the trial counsel shall permit the defense counsel to examine the record before authentication.
If the defense counsel discovers errors or omissions in the record, the defense counsel may suggest to the trial counsel appropriate changes to make the record accurate, forward for attachment to the record under Article 38(c) any objections to the record, or bring any suggestions for correction of the record to the attention of the person who authenticates the record. The defense counsel should be granted reasonable access to the reporter's notes and tapes to facilitate the examination of the record. A suitable notation that the defense counsel has examined the record should be made on the authentication page. See Appendix 13 or 14 for sample forms.
The summary court-martial shall examine and correct the summary court-martial record of trial as prescribed in R.C.M. 1305(a).
If authorized by regulations of the Secretary concerned, general and special courts-martial may be recorded by videotape, audiotape, or similar material from which sound and visual images may be reproduced to accurately depict the entire court-martial. Such means of recording may be used in lieu of recording by a qualified court reporter, when one is required, subject to this rule.
When the court-martial, or any part of it, is recorded by videotape, audiotape, or similar material under subsection (j)(1) of this rule, a transcript or summary in writing (as defined in R.C.M. 103), as required in subsection (b)(2)(A), (b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be prepared in accordance with this rule and R.C.M. 1104 before the record is forwarded under R.C.M. 1104(e), unless military exigencies prevent transcription.
If military exigency prevents preparation of a written transcript or summary, as required, and when the court-martial has been recorded by videotape, audiotape, or similar material under subsection (j)(1) of this rule, the videotape, audiotape, or similar material, together with the matters in subsections (b)(2)(D) and (b)(3) of this rule shall be authenticated and forwarded in accordance with R.C.M. 1104, provided that in such case the convening authority shall cause to be attached to the record a statement of the reasons why a written record could not be prepared, and provided further that in such case the defense counsel shall be given reasonable opportunity to listen to or to view and listen to the recording whenever defense counsel is otherwise entitled to examine the record under these rules. Subsection
Before review, if any, by a Court of Criminal Appeals of a case in which the record includes an authenticated recording prepared under subsection
(j)(3) of this rule, a complete written transcript shall be prepared and certified as accurate in accordance with regulations of the Secretary concerned. The authenticated recording shall be retained for examination by appellate authorities.
In cases in which the record includes an authenticated recording prepared under subsection (j)(3) of this rule, a written record shall be prepared under such circumstances as the Secretary concerned may prescribe.
When a record includes an authenticated recording under subsection (j)(3) of this rule, the Government shall, in order to comply with R.C.M. 1104(b):
Provide the accused with a duplicate copy of the videotape, audiotape, or similar matter and copies of any written contents of and attachments to the record, and give the accused reasonable opportunity to use such viewing equipment as is necessary to listen to or view and listen to the recording; or
With the written consent of the accused, defer service of the record until a written record is prepared under subsection (4) of this rule.
If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other matter ordered sealed by the preliminary hearing officer or military judge, counsel for the government or trial counsel shall cause such materials to be sealed so as to prevent unauthorized viewing or disclosure. Counsel for the government or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the original record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that matters were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or original record of trial.
Except as provided in the following subsections to this rule, sealed exhibits may not be examined.
The following individuals may examine sealed materials only if necessary for proper fulfillment of their responsibilities under the UCMJ, the MCM, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility: the judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff judge advocate to the general court-martial convening authority; and the general court-martial convening authority.
Prior to authentication of the record by the military judge, sealed materials may not be examined in the absence of an order from the military judge based on good cause shown.
(3) Authentication through action.
After authentication and prior to disposition of the record of trial pursuant to Rule for Courts-Martial 1111, sealed materials may not be examined in the absence of an order from the military judge upon a showing of good cause at a post-trial Article 39a session directed by the Convening Authority.
Discussion
A convening authority who has granted clemency based upon review of sealed materials in the record of trial is not permitted to disclose the contents of the sealed materials when providing a written explanation of the reason for such action, as directed under R.C.M. 1107.
(5) Examination of sealed matters.
For the purpose of this rule, "examination" includes reading, viewing, photocopying, photographing, disclosing, or manipulating the sealed matters in any way.
A record is authenticated by the signature of a person specified in this rule who thereby declares that the record accurately reports the proceedings. An electronic record of trial may be authenticated with the electronic signature of the military judge or other authorized person. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under R.C.M. 1105(c) and 1305(d). No person may be required to authenticate a record of trial if that person is not satisfied that it accurately reports the proceedings.
In special courts-martial in which a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, has been adjudged and in general courts-martial, except as provided in subsection
(a)(2)(B) of this rule, the military judge present at the end of the proceedings shall authenticate the record of trial, or that portion over which the military judge presided. If more than one military judge presided over the proceedings, each military judge shall authenticate the record of the proceedings over which that military judge presided, except as provided in subsection (a)(2)(B) of this rule. The record of trial of special courts-martial in which a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, was not adjudged shall be authenticated in accordance with regulations of the Secretary concerned.
If the military judge cannot authenticate the record of trial because of the military judge's death, disability, or absence, the trial counsel present at the end of the proceedings shall authenticate the record of trial. If the trial counsel cannot authenticate the record of trial because of the trial counsel's death, disability, or absence, a member shall authenticate the record of trial. In a court-martial composed of a military judge alone, or as to sessions without members, the court reporter shall authenticate the record of trial when this duty would fall upon a member under this subsection. A person authorized to authenticate a record under this subsection may authenticate the record only as to those proceedings at which that person was present.
See Appendix 13 or 14 for sample forms. Substitute authentication is authorized only in emergencies. A brief, temporary absence of the military judge from the situs of the preparation of the record of trial does not justify a substitute authentication. Prolonged absence, including permanent change of station, ordinarily justifies substitute authentication. The person who authenticates the record of trial instead of the military judge should attach to the record of trial an explanation for the substitute authentication. See R.C.M. 1103(b)(3) (E).
The summary court-martial shall authenticate the summary court-martial record of trial as prescribed in R.C.M. 1305(a).
In each general and special court-martial, except as provided in subsection (b)(1)(C) or (D) of this rule, the trial counsel shall cause a copy of the record of trial to be served on the accused as soon as the record of trial is authenticated.
The trial counsel shall cause the accused's receipt for the copy of the record of trial to be attached to the original record of trial. If it is impracticable to secure a receipt from the accused before the original record of trial is forwarded to the convening authority, the trial counsel shall prepare a certificate indicating that a copy of the record of trial has been transmitted to the accused, including the means of transmission and the address, and cause the certificate to be attached to the original record of trial. In such a case the accused's receipt shall be forwarded to the convening authority as soon as it is obtained.
If it is impracticable to serve the record of trial on the accused because of the transfer of the accused to a distant place, the unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at the court-martial or in writing, the accused's copy of the record shall be forwarded to the accused's defense counsel, if any. Trial counsel shall attach a statement to the record explaining why the accused was not served personally. If the accused has more than one counsel, R.C.M. 1106(f)(2) shall apply. If the accused has no counsel and if the accused is absent without authority, the trial counsel shall prepare an explanation for the failure to serve the record. The explanation and the accused's copy of the record shall be forwarded with the original record. The accused shall be provided with a copy of the record as soon as practicable.
See Appendix 13 or 14 for sample forms.
The certificate regarding deleted or withdrawn classified information shall indicate:
that the original record of trial may be inspected in the Office of the Judge Advocate General concerned under such regulations as the Secretary concerned may prescribe;
the pages of the record of trial from which matter has been deleted;
the pages of the record of trial which have been entirely deleted; and
the exhibits which have been withdrawn.
Discussion
See R.C.M. 1103(h) concerning classified information.
Qualifying victims, as defined in R.C.M. 1103 (g)(3)(A), shall be served a copy of the record of trial in the same manner as the accused under subsection (b) of this rule. In accordance with regulations of the Secretary concerned:
Subsection (b)(1)(E) of this rule was added to implement Article 54(e), UCMJ, in compliance with the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 586). The content of the victim's record of trial is prescribed in R.C.M. 1103(g)(3)(D). Promulgating orders are to be distributed in accordance with R.C.M. 1114(f).
A copy of the record of trial shall be provided to each qualifying victim as soon as it is authenticated or, if the victim requests, at a time thereafter. The victim's receipt of the record of trial, including any delay in receiving it, shall be documented and attached to the original record of trial.
A copy of the convening authority's action as described in R.C.M. 1103(b)(2)(D)(iv) shall be provided to each qualifying victim as soon as each document is prepared. If the victim makes a request in writing, service of the record of trial may be delayed until the action is available.
Classified information pursuant to subsection (b)(1)(D) of this rule, sealed matters pursuant to R.C.M. 1103A, or other portions of the record the release of which would unlawfully violate the privacy interests of any party, to include those afforded by 5 U.S.C.§552a, the Privacy Act of 1974, shall not be provided. Matters attached to the record as described in R.C.M. 1103 (b)(3) are not required to be provided.
The summary court-martial record of trial shall be disposed of as provided in R.C.M. 1305(d). Subsection (b)(1)(D) of this rule shall apply if classified information is included in the record of trial of a summary court-martial.
If the authenticated record of trial is lost or destroyed, the trial counsel shall, if practicable, cause another record of trial to be prepared for authentication. The new record of trial shall become the record of trial in the case if the requirements of R.C.M. 1103 and this rule are met.
A record of trial found to be incomplete or defective after authentication may be corrected to make it accurate. A record of trial may be returned to the convening authority by superior competent authority for correction under this rule.
The record of trial is corrected with a certificate of correction. See Appendix 13 or 14 for a form for a certificate of correction. A certificate of correction may be used only to make the record of trial correspond to the actual proceedings. If the members were not sworn, for example, the error cannot be cured by a certificate of correction. If the members were sworn but the record did not so reflect, the record could be corrected.
An authenticated record of trial believed to be incomplete or defective may be returned to the military judge or summary court-martial for a certificate of correction. The military judge or summary court-martial shall give notice of the proposed correction to all parties and permit them to examine and respond to the proposed correction before authenticating the certificate of correction. All parties shall be given reasonable access to any original reporter's notes or tapes of the proceedings.
The type of opportunity to respond depends on the nature and scope of the proposed correction. In many instances an adequate opportunity can be provided by allowing the respective parties to present affidavits and other documentary evidence to the person authenticating the certificate of correction or by a conference telephone call among the authenticating person, the parties, and the reporter. In other instances, an evidentiary hearing with witnesses may be required. The accused need not be present at any hearing on a certificate of correction.
The certificate of correction shall be authenticated as provided in subsection (a) of this rule and a copy served on the accused as provided in subsection (b) of this rule. The certificate of correction and the accused's receipt for the certificate of correction shall be attached to each copy of the record of trial required to be prepared under R.C.M. 1103(g).
After every court-martial, including a rehearing and new and other trials, the authenticated record shall be forwarded to the convening authority for initial review and action, provided that in case of a special court-martial in which a bad-conduct discharge or confinement for one year was adjudged or a general court-martial, the convening authority shall refer the record to the staff judge advocate or legal officer for recommendation under R.C.M. 1106 before the convening authority takes action.
[Note: R.C.M. 1105(b)(1) and (b)(2) apply to offenses committed on or after 24 June 2014.]
After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.
The accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilty or to approve the sentence, except as may be limited by R.C.M. 1107(b)(3)(C). The convening authority is only required to consider written submissions.
Submissions are not subject to the Military Rules of Evidence and may include:
Allegations of errors affecting the legality of the findings or sentence;
Portions or summaries of the record and copies of documentary evidence offered or introduced at trial;
Matters in mitigation which were not available for consideration at the court-martial, except as may be limited by R.C.M. 1107(b)(3)(B); and
For example, post-trial conduct of the accused, such as providing restitution to the victim or exemplary behavior, might be appropriate.
A clemency recommendation should state reasons for the recommendation and should specifically indicate the amount and character of the clemency recommended. A clemency recommendation by a member should not disclose the vote or opinion of any member expressed in deliberations. Except as provided in R.C.M. 923 and 1008 and Mil. R. Evid. 606(b), a clemency recommendation does not impeach the findings or the sentence. If the sentencing authority makes a clemency recommendation in conjunction with the announced sentence, see R.C.M. 1106(d)(3). Although only written submissions must be considered, the convening authority may consider any submission by the accused, including, but not limited to, videotapes, photographs, and oral presentations.
After a general or special court-martial, the accused may submit matters under this rule within the later of 10 days after a copy of the authenticated record of trial or, if applicable, the recommendation of the staff judge advocate or legal officer, or an addendum to the recommendation containing new matter is served on the accused. If, within the 10-day period, the accused shows that additional time is required for the accused to submit such matters, the convening authority or that authority's staff judge advocate may, for good cause, extend the 10-day period for not more than 20 additional days; however, only the convening authority may deny a request for such an extension.
After a summary court-martial, the accused may submit matters under this rule within 7 days after the sentence is announced. If the accused shows that additional time is required for the accused to submit such comments, the convening authority may, for good cause, extend the period in which comments may be submitted for up to 20 additional days.
A post-trial session under R.C.M. 1102 shall have no effect on the running of any time period in this rule, except when such session results in the announcement of a new sentence, in which case the period shall run from that announcement.
For purposes of this rule, good cause for an extension ordinarily does not include the need for securing matters which could reasonably have been presented at the court-martial.
Failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters.
Submission of any matters under this rule shall be deemed a waiver of the right to submit additional matters unless the right to submit additional matters within the prescribed time limits is expressly reserved in writing.
The accused may expressly waive, in writing, the right to submit matters under this rule. Once filed, such waiver may not be revoked.
If, as a result of the unauthorized absence of the accused, the record cannot be served on the accused in accordance with R.C.M. 1104(b)(1) and if the accused has no counsel to receive the record, the accused shall be deemed to have waived the right to submit matters under this rule within the time limit which begins upon service on the accused of the record of trial.
The accused is not required to raise objections to the trial proceedings in order to preserve them for later review.
A crime victim of an offense tried by any court-martial shall have the right to submit a written statement to the convening authority after the sentence is adjudged.
For purposes of this rule, a crime victim is a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty, and on which the convening authority is taking action under R.C.M. 1107. When a victim is under 18 years of age, incompetent, incapacitated, or deceased, the term includes one of the following (in order of precedence): a spouse, legal guardian, parent, child, sibling, or similarly situated family member. For a victim that is an institutional entity, the term includes an authorized representative of the entity.
The statement shall be in writing, and signed by the crime victim. Statements may include photographs, but shall not include video, audio, or other media.
Statements should be submitted to the convening authority's staff judge advocate or legal officer, or, in the case of a summary court-martial, to the summary court-martial officer.
The crime victim shall submit the statement to the convening authority's staff judge advocate or legal officer no later than 10 days after the later of:
if the victim is entitled to a copy of the record of proceedings in accordance with Article 54(e), UCMJ, the date on which the victim receives an authenticated copy of the record of trial or waives the right to receive such a copy; or
the date on which the recommendation of the staff judge advocate or legal officer is served on the victim.
The crime victim shall submit the statement to the summary court-martial officer no later than 7 days after the sentence is announced.
If a victim shows that additional time is required for submission of matters, the convening authority or other person taking action, for good cause, may extend the submission period for not more than an additional 20 days.
Subject to such regulations as the Secretary concerned may prescribe, trial counsel or the summary court-martial officer shall make reasonable efforts to inform crime victims of their rights under this rule, and shall advise such crime victims on the manner in which their statements may be submitted.
Failure to submit a statement within the time prescribed by this rule shall be deemed a waiver of the right to submit such a statement.
Submission of a statement under this rule shall be deemed a waiver of the right to submit an additional statement.
A crime victim may expressly waive, in writing, the right to submit a statement under this rule. Once filed, such waiver may not be revoked.
Before the convening authority takes action under R.C.M. 1107 on a record of trial by general court-martial, on a record of trial by special court-martial that includes a sentence to a bad-conduct discharge or confinement for one year, or on a record of trial by special court-martial in which a victim is entitled to submit a statement pursuant to R.C.M. ll05A, that convening authority's staff judge advocate or legal officer shall, except as provided in subsection (c) of this rule, forward to the convening authority a recommendation under this rule.
No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or preliminary hearing officer in any case may later act as a staff judge advocate or legal officer to any reviewing or convening authority in the same case.
The staff judge advocate or legal officer may also be ineligible when, for example, the staff judge advocate or legal officer; served as the defense counsel in a companion case; testified as to a contested matter (unless the testimony is clearly uncontroverted); has other than an official interest in the same case; or must review that officer's own pretrial action
(such as the pretrial advice under Article 34; see R.C.M. 406) when the sufficiency or correctness of the earlier action has been placed in issue.
The recommendation of the staff judge advocate or legal officer shall be a concise written communication.
Except as provided in subsection (e), the staff judge advocate or legal advisor shall provide the convening authority with a copy of the report of results of the trial, setting forth the findings, sentence, and confinement credit to be applied; a copy or summary of the pretrial agreement, if any; a copy of any statement submitted by a crime victim pursuant to R.C.M. 1l05A; any recommendation for clemency by the sentencing authority made in conjunction with the announced sentence; and the staff judge advocate's concise recommendation.
The recommendation required by this rule need not include information regarding other recommendations for clemency. It may include a summary of clemency actions authorized under R.C.M. 1107. See R.C.M. 1105(b)(2)(D) (pertaining to clemency recommendations that may be submitted by the accused to the convening authority).
The staff judge advocate or legal officer is not required to examine the record for legal errors. However, when the recommendation is prepared by a staff judge advocate, the staff judge advocate shall state whether, in the staff judge advocate's opinion, corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by the staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, if any, concerning legal error is not required.
The recommendation of the staff judge advocate or legal officer may include, in addition to matters included under subsection (d)(3) and (4) of this rule, any additional matters deemed appropriate by the staff judge advocate or legal officer. Such matter may include matters outside the record.
See R.C.M. 1107(b)(3)(B)(iii) if matters adverse to the accused from outside the record are included.
In case of error in the recommendation not otherwise waived under subsection (f)(6) of this rule, appropriate corrective action shall be taken by appellate authorities without returning the case for further action by a convening authority.
of mental responsibility. If the proceedings resulted in an acquittal or in a finding of not guilty only by reason of lack of mental responsibility of all charges and specifications, or if, after the trial began, the proceedings were terminated without findings and no further action is contemplated, a recommendation under this rule is not required.
and victim; defense response.
Before forwarding the recommendation and the record of trial to the convening authority for action under R.C.M. 1107, the staff judge advocate or legal officer shall cause a copy of the recommendation to be served on the counsel for the accused. A separate copy will be served on the accused. If it is impracticable to serve the recommendation on the accused for reasons including the transfer of the accused to a different place, the unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at the court-martial or in writing, the accused's copy shall be forwarded to the accused's defense counsel. A statement shall be attached to the record explaining why the accused was not served personally. If the accused was found guilty of any offense that resulted in direct physical, emotional, or pecuniary harm to a victim or victims, a separate copy of the recommendation will be served on that victim or those victims. When a victim is under 18 years of age, incompetent, incapacitated, deceased, or otherwise unavailable, service shall be made on one of the following (in order of precedence): the victim's attorney, spouse, legal guardian, parent, child, sibling, or similarly situated family member. For a victim that is an institutional entity, service shall be made on an authorized representative of the entity.
The method of service and the form of the proof of service are not prescribed and may be by any appropriate means. See R.C.M. 1103(b)(3)(G). For example, a certificate of service, attached to the record of trial, would be appropriate when the accused is served personally.
The accused may, at trial or in writing to the staff judge advocate or legal officer before the recommendation has been served under this rule, designate which counsel (detailed, individual military, or civilian) will be served with the recommendation. In the absence of such designation, the staff judge advocate or legal officer shall cause the recommendation to be served in the following order of precedence, as applicable, on: (1) civilian counsel; (2) individual military counsel; or (3) detailed defense counsel. If the accused has not retained civilian counsel and the detailed defense counsel and individual military counsel, if any, have been relieved or are not reasonably available to represent the accused, substitute military counsel to represent the accused shall be detailed by an appropriate authority. Substitute counsel shall enter into an attorney-client relationship with the accused before examining the recommendation and preparing any response.
When the accused is represented by more than one counsel, the military judge should inquire of the accused and counsel before the end of the court-martial as to who will act for the accused under this rule.
The staff judge advocate or legal officer shall, upon request of counsel for the accused served with the recommendation, provide that counsel with a copy of the record of trial for use while preparing the response to the recommendation.
Counsel for the accused may submit, in writing, corrections or rebuttal to any matter in the recommendation and its enclosures believed to be erroneous, inadequate, or misleading, and may comment on any other matter.
See also R.C.M. 1105.
Counsel for the accused shall be given 10 days from service of the record of trial under R.C.M. 1104(b) or receipt of the recommendation, whichever is later, in which to submit comments on the recommendation. The convening authority may, for good cause, extend the period in which comments may be submitted for up to 20 additional days.
Failure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.
The accused is not required to raise objections to the trial proceedings in order to preserve them for later review.
The staff judge advocate or legal officer may supplement the recommendation after the accused and counsel for the accused have been served with the recommendation and given an opportunity to comment. When new matter is introduced after the accused and counsel for the accused have examined the recommendation, however, the accused and counsel for the accused must be served with the new matter and given 10 days from service of the addendum in which to submit comments. Substitute service of the accused's copy of the addendum upon counsel for the accused is permitted in accordance with the procedures outlined in subparagraph (f)(1) of this rule.
"New matter" includes discussion of the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed. "New matter" does not ordinarily include any discussion by the staff judge advocate or legal officer of the correctness of the initial defense comments on the recommendation. The method of service and the form of the proof of service are not prescribed and may be by any appropriate means. See R.C.M. 1103(b)(3)(G). For example, a certificate of service, attached to the record of trial, would be appropriate when the accused is served personally. If a victim statement, submitted under R.C.M. 1105A, is served on the accused prior to service of the recommendation, then that statement shall not be considered a "new matter" when it is again served on the accused as an enclosure to the recommendation.
Suspension of a sentence grants the accused a probationary period during which the suspended part of an approved sentence is not executed, and upon the accused's successful completion of which the suspended part of the sentence shall be remitted. Remission cancels the unexecuted part of a sentence to which it applies.
[Note: R.C.M. 1108(b) applies to offenses committed on or after 24 June 2014.] The convening authority may, after approving the sentence, suspend the execution of all or any part of the sentence of a court-martial, except for a sentence of death or as prohibited under R.C.M. 1107(d). The general court-martial convening authority over the accused at the time of the court-martial may, when taking action under R.C.M. 1112(f), suspend or remit any part of the sentence. The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer may suspend or remit any part or amount of the unexecuted part of any sentence other than a sentence approved by the President or a sentence of confinement for life without eligibility for parole that has been ordered executed. The Secretary concerned may, however, suspend or remit the unexecuted part of a sentence of confinement for life without eligibility for parole only after the service of a period of confinement of not less than 20 years. The commander of the accused who has the authority to convene a court-martial of the kind that adjudged the sentence may suspend or remit any part of the unexecuted part of any sentence by summary court-martial or of any sentence by special court-martial that does not include a bad-conduct discharge regardless of whether the person acting has previously approved the sentence. The "unexecuted part of any sentence" is that part that has been approved and ordered executed but that has not actually been carried out.
See R.C.M. 1113 (execution of sentences); R.C.M. 1201 (action by the Judge Advocate General); R.C.M. 1206 (powers and responsibilities of the Secretary). The military judge and members of courts-martial may not suspend sentences.
The authority who suspends the execution of the sentence of a court-martial shall:
Specify in writing the conditions of the suspension;
Cause a copy of the conditions of the suspension to be served on the probationer; and
Cause a receipt to be secured from the probationer for service of the conditions of the suspension. Unless otherwise stated, an action suspending a sentence includes as a condition that the probationer not violate any punitive article of the code.
Suspension shall be for a stated period or until the occurrence of an anticipated future event. The period shall not be unreasonably long. The Secretary concerned may further limit by regulations the period for which the execution of a sentence may be suspended. The convening authority shall provide in the action that unless the suspension is sooner vacated, the expiration of the period of suspension shall remit the suspended portion of the sentence. An appropriate authority may, before the expiration of the period of suspension, remit any part of the sentence, including a part which has been suspended; reduce the period of suspension; or, subject to R.C.M. 1109, vacate the suspension in whole or in part.
Expiration of the period provided in the action suspending a sentence or part of a sentence shall remit the suspended portion unless the suspension is sooner vacated. Death or separation which terminates status as a person subject to the code shall result in remission of the suspended portion of the sentence.
See R.C.M. 1109(b)(4) concerning interruption of the period of suspension.
Suspension of execution of the sentence of a court-martial may be vacated for violation of the conditions of the suspension as provided in this rule.
Vacation shall be based on a violation of the conditions of suspension which occurs within the period of suspension.
Vacation proceedings under this rule shall be completed within a reasonable time.
The order vacating the suspension shall be issued before the expiration of the period of suspension.
The order vacating a suspended sentence must be issued before the end of suspension even though, in certain cases, it may not be effective as an order of execution of the suspended sentence until the completion of appellate review or action by the President or the Secretary concerned. See R.C.M. 1113 concerning execution of sentences.
Unauthorized absence of the probationer or the commencement of proceedings under this rule to vacate suspension interrupts the running of the period of suspension.
A probationer under a suspended sentence to confinement may be confined pending action under subsection (d)(2) of this rule, in accordance with the procedures in this subsection.
Any person who may order pretrial restraint under R.C.M. 304(b) may order confinement of a probationer under a suspended sentence to confinement.
A probationer under a suspended sentence to confinement may be ordered into confinement upon probable cause to believe the probationer violated any conditions of the suspension.
A determination that confinement is necessary to ensure the presence of the probationer or to prevent further misconduct is not required. If the violation of the conditions also constitutes an offense under the code for which trial by court-martial is considered, an appropriate form of pretrial restraint may be imposed as an alternative to confinement under this rule. See R.C.M. 304 and 305.
Unless proceedings under subsection (d)(1), (e), (f), or (g) of this rule are completed within 7 days of imposition of confinement of the probationer (not including any delays requested by probationer), a preliminary hearing shall be conducted by a neutral and detached officer appointed in accordance with regulations of the Secretary concerned.
Before the preliminary hearing, the accused shall be notified in writing of:
The time, place, and purpose of the hearing, including the alleged violation(s) of the conditions of suspension;
The right to be present at the hearing;
The right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and
The opportunity to be heard, to present witnesses who are reasonably available and other evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that this would subject these witnesses to risk or harm. For purposes of this subsection, a witness is not reasonably available if the witness requires reimbursement by the United States for cost incurred in appearing, cannot appear without unduly delaying the proceedings or, if a military witness, cannot be excused from other important duties.
Except for Mil. R. Evid. Section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence shall not apply to matters considered at the preliminary hearing under this rule.
The hearing officer shall determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension. If the hearing officer determines that probable cause is lacking, the hearing officer shall issue a written order directing that the probationer released from confinement. If the hearing officer determines that there is probable cause to believe that the probationer violated the conditions of suspension, the hearing officer shall set forth in a written memorandum, detailing therein the evidence relied upon and reasons for making the decision. The hearing officer shall forward the original memorandum or release order to the probationer's commander and forward a copy to the probationer and the officer in charge of the confinement facility.
Before vacation of the suspension of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall personally hold a hearing on the alleged violation of the conditions of suspension. If there is no officer having special court-martial jurisdiction over the probationer who is subordinate to the officer having general court-martial jurisdiction over the probationer, the officer exercising general court-martial jurisdiction over the probationer shall personally hold a hearing under subsection (d)(1) of this rule. In such cases, subsection
(d)(1)(D) of this rule shall not apply.
Before the hearing, the officer conducting the hearing shall cause the probationer to be notified in writing of:
The time, place, and purpose of the hearing;
The right to be present at the hearing;
The alleged violation(s) of the conditions of suspension and the evidence expected to be relied on;
The right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and
The opportunity to be heard, to present witnesses and other evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that there is good cause for not allowing confrontation and cross-examination.
Discussion
The notice should be provided sufficiently in advance of the hearing to permit adequate preparation.
The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), (h)(1), and (i).
The officer who conducts the vacation proceeding shall make a summarized record of the proceeding and forward the record and that officer's written recommendation concerning vacation to the officer exercising general court-martial jurisdiction over the probationer.
If the special court-martial convening authority finds there is not probable cause to believe that the probationer violated the conditions of the suspension, the special court-martial convening authority shall order the release of the probationer from any confinement ordered under subsection
See Appendix 18 for a sample of a Report of Proceedings to Vacate Suspension of a General Court-Martial Sentence under Article 72, UCMJ, and R.C.M. 1109 (DD Form 455).
probationer.
The officer exercising general court-martial jurisdiction over the probationer shall review the record produced by and the recommendation of the officer exercising special court-martial jurisdiction over the probationer, decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising general court-martial jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.
Any unexecuted part of a suspended sentence ordered vacated under this rule shall, subject to R.C.M. 1113(c), be ordered executed.
bad-conduct discharge or confinement for one year was not adjudged.
Before vacating the suspension of a special court-martial punishment that does not include a bad-conduct discharge or confinement for one year, the special court-martial convening authority for the command in which the probationer is serving or assigned shall cause a hearing to be held on the alleged violation(s) of the conditions of suspension.
The person conducting the hearing shall notify the probationer, in writing, before the hearing of the rights specified in subsection (d)(1)(B) of this rule.
The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), (h)(1), and (i).
If the hearing is not held by the commander with authority to vacate the suspension, the person who conducts the hearing shall make a summarized record of the hearing and forward the record and that officer's written recommendation concerning vacation to the commander with authority to vacate the suspension.
The special court-martial convening authority shall review the record produced by and the recommendation of the person who conducted the vacation proceeding, decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.
Any unexecuted part of a suspended sentence ordered vacated under this subsection shall be ordered executed.
a bad-conduct discharge or confinement for one year.
The procedure for the vacation of a suspended approved bad-conduct discharge or of any suspended portion of an approved sentence to confinement for one year, shall follow that set forth in subsection (d) of this rule.
The procedure for the vacation of a suspension of any lesser special court-martial punishment shall follow that set forth in subsection (e) of this rule.
An officer exercising special court-martial jurisdiction may vacate any suspended punishments other than an approved suspended bad-conduct discharge or any suspended portion of an approved sentence to confinement for one year, regardless of whether they are contained in the same sentence as the bad-conduct discharge or confinement for one year. See Appendix 18 for a sample of a Report of Proceedings to Vacate Suspension of a Special Court-Martial Sentence including a bad-conduct discharge or confinement for one year under Article 72, UCMJ, and R.C.M. 1109 (DD Form 455).
The person conducting the hearing shall notify the probationer before the hearing of the rights specified in subsections (d)(1)(B)(i), (ii), (iii), and (v) of this rule.
The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), (h)(1), and (i).
If the hearing is not held by the commander with authority to vacate the suspension, the person who conducts the vacation proceeding shall make a summarized record of the proceeding and forward the record and that officer's written recommendation concerning vacation to the commander with authority to vacate the suspension.
A commander with authority to vacate the suspension shall review the record produced by and the recommendation of the person who conducted the vacation proceeding, decide whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on and the reasons for vacating the suspended sentence.
Any unexecuted part of a suspended sentence ordered vacated under this subsection shall be ordered executed.
After any general court-martial, except one in which the approved sentence includes death, and after any special court-martial in which the approved sentence includes a bad-conduct discharge or confinement for one year, the accused may waive or withdraw appellate review.
Appellate review is not available for special courts-martial in which a bad-conduct discharge or confinement for one year was not adjudged or approved or for summary courts-martial. Cases not subject to appellate review, or in which appellate review is waived or withdrawn, are reviewed by a judge advocate under R.C.M. 1112. Such cases may also be submitted to the Judge Advocate General for review. See R.C.M. 1201(b)(3). Appellate review is mandatory when the approved sentence includes death.
The accused shall have the right to consult with counsel qualified under R.C.M. 502(d)(1) before submitting a waiver or withdrawal of appellate review.
The accused shall have the right to consult with any civilian, individual military, or detailed counsel who represented the accused at the court-martial concerning whether to waive appellate review unless such counsel has been excused under R.C.M. 505(d)(2)(B).
If counsel who represented the accused at the court-martial has not been excused but is not immediately available to consult with the accused, because of physical separation or other reasons, associate defense counsel shall be detailed to the accused upon request by the accused. Such counsel shall communicate with counsel who represented the accused at the court-martial, and shall advise the accused concerning whether to waive appellate review.
If counsel who represented the accused at the court-martial has been excused under R.C.M. 505(d)(2)(B), substitute defense counsel shall be detailed to advise the accused concerning waiver of appellate rights.
If the accused is represented by appellate defense counsel, the accused shall have the right to consult with such counsel concerning whether to withdraw the appeal.
If the accused is represented by appellate defense counsel, and such counsel is not immediately available to consult with the accused, because of physical separation or other reasons, associate defense counsel shall be detailed to the accused, upon request by the accused. Such counsel shall communicate with appellate defense counsel and shall advise the accused whether to withdraw the appeal.
If appellate defense counsel has not been assigned to the accused, defense counsel shall be detailed for the accused. Such counsel shall advise the accused concerning whether to withdraw the appeal. If practicable, counsel who represented the accused at the court-martial shall be detailed.
Whether or not the accused was represented by civilian counsel at the court-martial, the accused may consult with civilian counsel, at no expense to the United States, concerning whether to waive or withdraw appellate review.
Any defense counsel with whom the accused consults under this rule shall be given reasonable opportunity to examine the record of trial.
Ordinarily counsel may use the accused's copy of the record. If this is not possible, as when the accused and counsel are physically separated, another copy should be made available to counsel.
The right to consult with counsel, as used in this rule, does not require communication in the presence of one another.
No person may compel, coerce, or induce an accused by force, promises of clemency, or otherwise to waive or withdraw appellate review.
A waiver or withdrawal of appellate review shall:
Be written;
State that the accused and defense counsel have discussed the accused's right to appellate review and the effect of waiver or withdrawal of appellate review and that the accused understands these matters;
State that the waiver or withdrawal is submitted voluntarily; and
Be signed by the accused and by defense counsel.
See Appendix 19 (DD Form 2330) or Appendix 20
(DD Form 2331) for samples of forms.
A waiver of appellate review shall be filed with the convening authority. The waiver shall be attached to the record of trial.
A withdrawal of appellate review may be filed with the authority exercising general court-martial jurisdiction over the accused, who shall promptly forward it to the Judge Advocate General, or directly with the Judge Advocate General.
The accused may sign a waiver of appellate review at any time after the sentence is announced. The waiver must be filed within 10 days after the accused or defense counsel is served with a copy of the action under R.C.M. 1107(h). Upon written application of the accused, the convening authority may extend this period for good cause, for not more than 30 days.
The accused may file withdrawal from appellate review at any time before such review is completed.
A waiver or withdrawal of appellate review under this rule shall bar review by the Judge Advocate General under R.C.M. 1201(b)(1) and by the Court of Criminal Appeals. Once submitted, a waiver or withdrawal in compliance with this rule may not be revoked.
If the accused files a timely waiver of appellate review in accordance with this rule, the record shall be forwarded for review by a judge advocate under R.C.M. 1112.
Action on a withdrawal of appellate review shall be carried out in accordance with procedures established by the Judge Advocate General, or if the case is pending before a Court of Criminal Appeals, in accordance with the rules of such court. If the appeal is withdrawn, the Judge Advocate General shall forward the record to an appropriate authority for compliance with R.C.M. 1112.
A purported waiver or withdrawal of an appeal which does not substantially comply with this rule shall have no effect.
A record of trial by general court-martial and the convening authority's action shall be sent directly to the Judge Advocate General concerned if the approved sentence includes death or if the accused has not waived review under R.C.M. 1110. Unless otherwise prescribed by regulations of the Secretary concerned, 10 copies of the order promulgating the result of trial as to each accused shall be forwarded with the original record of trial. Two additional copies of the record of trial shall accompany the original record if the approved sentence includes death or if it includes dismissal of an officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more and the accused has not waived appellate review. Forwarding of an authenticated electronic copy of the record of trial satisfies the requirements under this rule.
A record of trial by general court-martial and the convening authority's action shall be sent directly to a judge advocate for review under R.C.M. 1112 if the sentence does not include death and if the accused has waived appellate review under R.C.M. 1110. Unless otherwise prescribed by the Secretary concerned, 4 copies of the order promulgating the result of trial shall be forwarded with the original record of trial.
one year. If the approved sentence of a special court-martial includes a bad-conduct discharge or confinement for one year, the record shall be disposed of as provided in subsection (a) of this rule.
The record of trial by a special court-martial in which the approved sentence does not include a bad-conduct discharge or confinement for one year shall be forwarded directly to a judge advocate for review under R.C.M. 1112. Four copies of the order promulgating the result of trial shall be forwarded with the record of trial, unless otherwise prescribed by regulations of the Secretary concerned.
The convening authority shall dispose of a record of trial by summary court-martial as provided by R.C.M. 1306.
See DD Form 494 (Court-Martial Data Sheet).
Except as provided in subsection (b) of this rule, under regulations of the Secretary concerned, a judge advocate shall review:
Each general court-martial in which the accused has waived or withdrawn appellate review under R.C.M. 1110.
Each special court-martial in which the accused has waived or withdrawn appellate review under R.C.M. 1110 or in which the approved sentence does not include a bad-conduct discharge or confinement for one year; and
Each summary court-martial.
If the accused was found not guilty or not guilty only by reason of lack of mental responsibility of all offenses or if the convening authority disapproved all findings of guilty, no review under this rule is required.
No person may review a case under this rule if that person has acted in the same case as an accuser, preliminary hearing officer, member of the court-martial, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense.
The judge advocate's review shall be in writing and shall contain the following:
The court-martial had jurisdiction over the accused and each offense as to which there is a finding of guilty which has not been disapproved;
Each specification as to which there is a finding of guilty which has not been disapproved stated an offense; and
The sentence was legal;
A response to each allegation of error made in writing by the accused. Such allegations may be filed under R.C.M. 1105, 1106(f), or directly with the judge advocate who reviews the case; and
If the case is sent for action to the officer exercising general court-martial jurisdiction under subsection (e) of this rule, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law. Copies of the judge advocate's review under this rule shall be attached to the original and all copies of the record of trial. A copy of the review shall be forwarded to the accused.
In cases reviewed under subsection (a) of this rule, the record of trial shall be sent for action to the officer exercising general court-martial convening authority over the accused at the time the court-martial was held
(or to that officer's successor) when:
The judge advocate who reviewed the case recommends corrective action;
The sentence approved by the convening authority includes dismissal, a dishonorable or bad-conduct discharge, or confinement for more than 6 months; or
Such action is otherwise required by regulations of the Secretary concerned.
The officer exercising general court-martial jurisdiction who receives a record under subsection (e) of this rule may-
Disapprove or approve the findings or sentence in whole or in part;
Remit, commute, or suspend the sentence in whole or in part;
Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or
Dismiss the charges.
See R.C.M. 1113 concerning when the officer exercising general court-martial jurisdiction may order parts of the sentence executed. See R.C.M. 1114 concerning orders promulgating the action of the officer exercising general court-martial jurisdiction. See also Appendix 16 (Forms for actions) and Appendix 17 (Forms for court-martial orders).
If the officer exercising general court-martial jurisdiction orders a rehearing, but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
After the officer exercising general court-martial jurisdiction has taken action, the accused shall be notified of the action and the accused shall be provided with a copy of the judge advocate's review.
If the judge advocate who reviews the case under this rule states that corrective action is required as a matter of law, and the officer exercising general court-martial jurisdiction does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and the action thereon shall be forwarded to the Judge Advocate General concerned for review under R.C.M. 1201(b)(2).
If the approved sentence includes dismissal, the record shall be forwarded to the Secretary concerned.
A dismissal may not be ordered executed until approved by the Secretary or the Secretary's designee. See R.C.M. 1206.
Records reviewed under this rule which are not forwarded under subsection (g)(1) of this rule shall be disposed of as prescribed by the Secretary concerned.
A dismissal may not be ordered executed until approved by the Secretary or the Secretary's designee under R.C.M. 1206.
No sentence of a court-martial may be executed unless it has been approved by the convening authority.
An order executing the sentence directs that the sentence be carried out. Except as provided in subsections (d)(2), (3), and (5) of this rule, no part of a sentence may be carried out until it is ordered executed.
Under regulations prescribed by the Secretary concerned, a dishonorable or bad conduct discharge that has been approved by an appropriate convening authority may be self-executing after final judgment at such time as:
The accused has received a sentence of no confinement or has completed all confinement;
The accused has been placed on excess or appellate leave; and,
The appropriate official has certified that the accused's case is final. Upon completion of the certification, the official shall forward the certification to the accused's personnel office for preparation of a final discharge order and certificate.
A sentence to death which has been finally ordered executed shall be carried out in the manner prescribed by the Secretary concerned.
An accused lacking the mental capacity to understand the punishment to be suffered or the reason for imposition of the death sentence may not be put to death during any period when such incapacity exists. The accused is presumed to have such mental capacity. If a substantial question is raised as to whether the accused lacks capacity, the convening authority then exercising general court-martial jurisdiction over the accused shall order a hearing on the question. A military judge, counsel for the government, and counsel for the accused shall be detailed. The convening authority shall direct an examination of the accused in accordance with R.C.M. 706, but the examination may be limited to determining whether the accused understands the punishment to be suffered and the reason therefore. The military judge shall consider all evidence presented, including evidence provided by the accused. The accused has the burden of proving such lack of capacity by a preponderance of the evidence. The military judge shall make findings of fact, which will then be forwarded to the convening authority ordering the hearing. If the accused is found to lack capacity, the convening authority shall stay the execution until the accused regains appropriate capacity.
A verbatim transcript of the hearing should accompany the findings of fact.
Any period of confinement included in the sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but the following shall be excluded in computing the service of the term of confinement:
Periods during which the sentence to confinement is suspended or deferred;
Periods during which the accused is in custody of civilian authorities under Article 14 from the time of the delivery to the return to military custody, if the accused was convicted in the civilian court;
Periods during which the accused is in custody of civilian or foreign authorities after the convening authority, pursuant to Article 57a.(b)(1), has postponed the service of a sentence to confinement.
Discussion
The convening authority's decision to postpone service of a court-martial sentence to confinement normally should be reflected in the action.
Periods during which the accused has escaped or is absent without authority, or is absent under a parole which proper authority has later revoked, or is erroneously released from confinement through misrepresentation or fraud on the part of the prisoner, or is erroneously released from confinement upon the prisoner's petition for a writ of habeas corpus under a court order which is later reversed; and
Periods during which another sentence by court-martial to confinement is being served. When a prisoner serving a court-martial sentence to confinement is later convicted by a court-martial of another offense and sentenced to confinement, the later sentence interrupts the running of the earlier sentence. Any unremitted remaining portion of the earlier sentence will be served after the later sentence is fully executed.
The omission of "hard labor" from any sentence of a court-martial which has adjudged confinement shall not prohibit the authority who orders the sentence executed from requiring hard labor as part of the punishment.
The authority who orders a sentence to confinement into execution shall designate the place of confinement under regulations prescribed by the Secretary concerned, unless otherwise prescribed by the Secretary concerned. Under such regulations as the Secretary concerned may prescribe, a sentence to confinement adjudged by a court-martial or other military tribunal, regardless whether the sentence includes a punitive discharge or dismissal and regardless whether the punitive discharge or dismissal has been executed, may be ordered to be served in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, Territory, District of Columbia, or place in which the institution is situated. When the service of a sentence to confinement has been deferred and the deferment is later rescinded, the convening authority shall designate the place of confinement in the initial action on the sentence or in the order rescinding the deferment. No member of the armed forces, or person serving with or accompanying an armed force in the field, may be placed in confinement in immediate association with enemy prisoners or with other foreign nationals not subject to the code. The Secretary concerned may prescribe regulations governing the place and conditions of confinement.
See R.C.M. 1101(c) concerning deferment of a sentence to confinement.
Confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the Government's interest in appropriate punishment.
When restriction and hard labor without confinement are included in the same sentence, they shall, unless one is suspended, be executed concurrently.
If at the time forfeitures may be ordered executed, the accused is already serving a sentence to forfeitures by another court-martial, the authority taking action may order that the later forfeitures will be executed when the earlier sentence to forfeitures is completed.
Unless otherwise prescribed by the Secretary concerned, orders promulgating the result of trial and the actions of the convening or higher authorities on the record shall be prepared, issued, and distributed as prescribed in this rule.
A promulgating order publishes the result of the court-martial and the convening authority's action and any later action taken on the case.
An order promulgating the result of a trial by summary court-martial need not be issued.
See R.C.M. 1306(b)(2) concerning summary courts-martial.
An order promulgating a self-executing dishonorable or bad conduct discharge need not be issued. The original action by a convening authority approving a discharge and certification by the appropriate official that the case is final may be forwarded to the accused's personnel office for preparation of a discharge order and certificate.
The order promulgating the result of trial and the initial action of the convening authority shall be issued by the convening authority.
Any action taken on the case subsequent to the initial action shall be promulgated in supplementary orders. The subsequent action and the supplementary order may be the same document if signed personally by the appropriate convening or higher authority.
General court-martial orders publishing the final result in cases in which the President or the Secretary concerned has taken final action shall be promulgated as prescribed by regulations of the Secretary concerned.
In cases other than those in subsection (b)(2)(A) of this rule, the final action may be promulgated by an appropriate convening authority.
The order promulgating the initial action shall set forth: the type of court-martial and the command by which it was convened; the charges and specifications, or a summary thereof, on which the accused was arraigned; the accused's pleas; the findings or other disposition of each charge and specification; the sentence, if any; and the action of the convening authority, or a summary thereof. Supplementary orders shall recite, verbatim, the action or order of the appropriate authority, or a summary thereof.
A promulgating order shall bear the date of the initial action, if any, of the convening authority. An order promulgating an acquittal, a court-martial terminated before findings, a court-martial resulting in a finding of not guilty only by reason of lack of mental responsibility of all charges and specifications, or action on the findings or sentence taken after the initial action of the convening authority shall bear the date of its publication. A promulgating order shall state the date the sentence was adjudged, the date on which the acquittal was announced, or the date on which the proceedings were otherwise terminated.
See Appendix 17 for sample forms for promulgating orders.
action. An order promulgating the result of trial by general or special court-martial shall be issued regardless of the result and regardless of the action of the convening or higher authorities.
When an order contains information which must be classified, only the order retained in the unit files and those copies which accompany the record of trial shall be complete and contain the classified information. The order shall be assigned the appropriate security classification. Asterisks shall be substituted for the classified information in the other copies of the order.
The promulgating order shall be authenticated by the signature of the convening or other competent authority acting on the case, or a person acting under the direction of such authority. A promulgating order prepared in compliance with this rule shall be presumed authentic.
Promulgating orders shall be distributed as provided in regulations of the Secretary concerned.
The Judge Advocate General shall refer to a Court of Criminal Appeals the record in each trial by court-martial:
In which the sentence, as approved, extends to death; or
In which-
The sentence, as approved, extends to dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for 1 year or longer; and
The accused has not waived or withdrawn appellate review.
_ See_ R.C.M. 1110 concerning waiver or withdrawal of appellate review. See also subsection
(b)(1) of this rule concerning cases reviewed by the Judge Advocate General which may be referred to a Court of Criminal Appeals. See R.C.M. 1203 concerning review by the Court of Criminal Appeals and the powers and responsibilities of the Judge Advocate General after such review. See R.C.M. 1202 concerning appellate counsel.
Except when the accused has waived the right to appellate review or withdrawn such review, the record of trial by a general court-martial in which there has been a finding of guilty and a sentence, the appellate review of which is not provided for in subsection (a) of this rule, shall be examined in the office of the Judge Advocate General. If any part of the findings or sentence is found unsupported in law, or if reassessment of the sentence is appropriate, the Judge Advocate General may modify or set aside the findings or sentence or both. If the Judge Advocate General so directs, the record shall be reviewed by a Court of Criminal Appeals in accordance with R.C.M. 1203. If the case is forwarded to a Court of Criminal Appeals, the accused shall be informed and shall have the rights under R.C.M. 1202(b)(2).
A case forwarded to a Court of Criminal Appeals under this subsection is subject to review by the Court of Appeals for the Armed Forces upon petition by the accused under Article 67(a)(3) or when certified by the Judge Advocate General under Article 67(a)(2).
The Judge Advocate General shall review each case forwarded under R.C.M. 1112(g)(1). On such review, the Judge Advocate General may vacate or modify, in whole or part, the findings or sentence, or both, of a court-martial on the ground of newly discovered evidence, fraud on the court-martial, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.
Notwithstanding R.C.M. 1209, the Judge Advocate General may, sua sponte or upon application of the accused or a person with authority to act for the accused, vacate or modify, in whole or in part, the findings, sentence, or both of a court-martial which has been finally reviewed, but has not been reviewed either by a Court of Criminal Appeals or by the Judge Advocate General under subsection (b)(1) of this rule, on the ground of newly discovered evidence, fraud on the court-martial, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.
See R.C.M. 1210 concerning petition for new trial. Review of a case by a Judge Advocate General under this subsection is not part of appellate review within the meaning of Article 76 or R.C.M. 1209. Review of a finding of not guilty only by reason of lack of mental responsibility under this rule may not extend to the determination of lack of mental responsibility. Thus, modification of a finding of not guilty only by reason of lack of mental responsibility under this rule is limited to changing the finding to not guilty or not guilty only by reason of lack of mental responsibility of a lesser included offense.
Each Judge Advocate General shall provide procedures for considering all cases properly submitted under subsection (b)(3) of this rule and may prescribe the manner by which an application for relief under subsection
(b)(3) of this rule may be made and, if submitted by a person other than the accused, may require that the applicant show authority to act on behalf of the accused.
See R.C.M. 1114 concerning orders promulgating action under this rule.
Any application for review by the Judge Advocate General under Article 69 must be made on or before the last day of the two year period beginning on the date the sentence is approved by the convening authority or the date the findings are announced for cases which do not proceed to sentencing, unless the accused establishes good cause for failure to file within that time.
If the Judge Advocate General sets aside the findings or sentence, the Judge Advocate General may, except when the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the Judge Advocate General sets aside the findings and sentence and does not order a rehearing, the Judge Advocate General shall order that the charges be dismissed. If the Judge Advocate General orders a rehearing but the convening authority finds a rehearing impractical, the convening authority shall dismiss the charges.
The Judge Advocate General may, when so authorized by the Secretary concerned under Article 74, at any time remit or suspend the unexecuted part of any sentence, other than a sentence approved by the President.
The Judge Advocate General concerned shall detail one or more commissioned officers as appellate Government counsel and one or more commissioned officers as appellate defense counsel who are qualified under Article 27(b)(1).
Appellate Government counsel shall represent the United States before the Court of Criminal Appeals or the United States Court of Appeals for the Armed Forces when directed to do so by the Judge Advocate General concerned. Appellate Government counsel may represent the United States before the United States Supreme Court when requested to do so by the Attorney General.
Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court when the accused is a party in the case before such court and:
The accused requests to be represented by appellate defense counsel;
The United States is represented by counsel; or
The Judge Advocate General has sent the case to the United States Court of Appeals for the Armed Forces. Appellate defense counsel is authorized to communicate directly with the accused. The accused is a party in the case when named as a party in pleadings before the court or, even if not so named, when the military judge is named as respondent in a petition by the Government for extraordinary relief from a ruling in favor of the accused at trial.
For a discussion of the duties of the trial defense counsel concerning post-trial and appellate matters, see R.C.M. 502(d)(6) Discussion
(E). Appellate defense counsel may communicate with trial defense counsel concerning the case. See also Mil. R. Evid. 502 (privileges). If all or part of the findings and sentence are affirmed by the Court of Criminal Appeals, appellate defense counsel should advise the accused whether the accused should petition for further review in the United States Court of Appeals for the Armed Forces and concerning which issues should be raised. The accused may be represented by civilian counsel before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. Such counsel will not be provided at the expense of the United States. Civilian counsel may represent the accused before these courts in addition to or instead of military counsel. If, after any decision of the Court of Appeals for the Armed Forces, the accused may apply for a writ of certiorari (see R.C.M. 1205), appellate defense counsel should advise the accused whether to apply for review by the Supreme Court and which issues might be raised. If authorized to do so by the accused, appellate defense counsel may prepare and file a petition for a writ of certiorari on behalf of the accused. The accused has no right to select appellate defense counsel. Under some circumstances, however, the accused may be entitled to request that the detailed appellate defense counsel be replaced by another appellate defense counsel. See also R.C.M. 1204(b)(1) concerning detailing counsel with respect to the right to petition the Court of Appeals for the Armed Forces for review.
Each Judge Advocate General shall establish a Court of Criminal Appeals composed of appellate military judges.
See Article 66 concerning the composition of the Courts of Criminal Appeals, the qualifications of appellate military judges, the grounds for their ineligibility, and restrictions upon the official relationship of the members of the court to other members. Uniform rules of court for the Courts of Criminal Appeals are prescribed by the Judge Advocates General.
A Court of Criminal Appeals shall review cases referred to it by the Judge Advocate General under R.C.M. 1201(a) or (b)(1).
See R.C.M. 1110 concerning withdrawal of a case pending before a Court of Criminal Appeals. See R.C.M. 908 concerning procedures for interlocutory appeals by the Government. In cases referred to it under R.C.M. 1201, a Court of Criminal Appeals may act only with respect to the findings and sentence as approved by proper authority. It may affirm only such findings of guilty or such part of a finding of guilty as includes an included offense, as it finds correct in law and fact and determines on the basis of the entire record should be approved. A Court of Criminal Appeals has generally the same powers as the convening authority to modify a sentence (see R.C.M. 1107), but it may not suspend all or part of a sentence. However, it may reduce the period of a suspension prescribed by a convening authority. It may not defer service of a sentence to confinement. ( see R.C.M. 1101(c)). It may, however, review a decision by a convening authority concerning deferral, to determine whether that decision was an abuse of the convening authority's discretion. In considering the record of a case referred to it under R.C.M. 1201, a Court of Criminal Appeals may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the court-martial saw and heard the evidence. A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. Article 59(a). If a Court of Criminal Appeals sets aside any findings of guilty or the sentence, it may, except as to findings set aside for lack of sufficient evidence in the record to support the findings, order an appropriate type of rehearing or reassess the sentence as appropriate. See R.C.M. 810 concerning rehearings. If the Court of Criminal Appeals sets aside all the findings and the sentence and does not order a rehearing, it must order the charges dismissed. _ See_ Articles 59(a) and 66. A Court of Criminal Appeals may on petition for extraordinary relief issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law. Any party may petition a Court of Criminal Appeals for extraordinary relief.
the Armed Forces. The Judge Advocate General may forward the decision of the Court of Criminal Appeals to the Court of Appeals for the Armed Forces for review with respect to any matter of law. In such a case, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals and the order forwarding the case to be served on the accused and on appellate defense counsel. While a review of a forwarded case is pending, the Secretary concerned may defer further service of a sentence to confinement that has been ordered executed in such a case.
In a case reviewed by it under this rule in which the Court of Criminal Appeals has set aside the sentence and which is not forwarded to the Court of Appeals for the Armed Forces under subsection (c)(1) of this rule, the Judge Advocate General shall instruct an appropriate convening authority to take action in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has ordered a rehearing, the record shall be sent to an appropriate convening authority. If that convening authority finds a rehearing impracticable that convening authority may dismiss the charges.
If charges are dismissed, see R.C.M. 1208 concerning restoration of rights, privileges, and property. See R.C.M. 1114 concerning promulgating orders.
If the Court of Criminal Appeals affirms any sentence which includes death, the Judge Advocate General shall transmit the record of trial and the decision of the Court of Criminal Appeals directly to the Court of Appeals for the Armed Forces when any period for reconsideration provided by the rules of the Courts of Criminal Appeals has expired.
If the Court of Criminal Appeals affirms any sentence other than one which includes death, the Judge Advocate General shall cause a copy of the decision of the Court of Criminal Appeals to be served on the accused in accordance with subsection (d) of this rule.
If the Judge Advocate General believes that a sentence as affirmed by the Court of Criminal Appeals, other than one which includes death, should be remitted or suspended in whole or part, the Judge Advocate General may, before taking action under subsections (c)(1) or (3) of this rule, transmit the record of trial and the decision of the Court of Criminal Appeals to the secretary concerned with a recommendation for action under Article 74 or may take such action as may be authorized by the Secretary concerned under Article 74(a).
See R.C.M. 1201(c); 1206.
An appellate authority may not affirm the proceedings while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings. If a substantial question is raised as to the requisite mental capacity of the accused, the appellate authority may direct that the record be forwarded to an appropriate authority for an examination of the accused in accordance with R.C.M. 706, but the examination may be limited to determining the accused's present capacity to understand and cooperate in the appellate proceedings. The order of the appellate authority will instruct the appropriate authority as to permissible actions that may be taken to dispose of the matter. If the record is thereafter returned to the appellate authority, the appellate authority may affirm part or all of the findings or sentence unless it is established, by a preponderance of the evidence-including matters outside the record of trial-that the accused does not have the requisite mental capacity. If the accused does not have the requisite mental capacity, the appellate authority shall stay the proceedings until the accused regains appropriate capacity, or take other appropriate action. Nothing in this subsection shall prohibit the appellate authority from making a determination in favor of the accused which will result in the setting aside of a conviction.
The accused shall be notified of the decision of the Court of Criminal Appeals in accordance with regulations of the Secretary concerned.
The accused may be notified personally, or a copy of the decision may be sent, after service on appellate counsel of record, if any, by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in the accused's official service record. If the Judge Advocate General has forwarded the case to the Court of Appeals for the Armed Forces, the accused should be so notified. See subsection (c)(1) of this rule.
Forces for review. If the accused has the right to petition the Court of Appeals for the Armed Forces for review, the accused shall be provided with a copy of the decision of the Court of Criminal Appeals bearing an endorsement notifying the accused of this right. The endorsement shall inform the accused that such a petition:
May be filed only within 60 days from the time the accused was in fact notified of the decision of the Court of Criminal Appeals or the mailed copy of the decision was postmarked, whichever is earlier; and
May be forwarded through the officer immediately exercising general court-martial jurisdiction over the accused and through the appropriate Judge Advocate General or filed directly with the Court of Appeals for the Armed Forces.
See Article 67(c). See also R.C.M. 1204(b). The accused may petition the Court of Appeals for the Armed Forces for review, as to any matter of law, of any decision of the Court of Criminal Appeals except: (1) a case which was referred to the Court of Criminal Appeals by the Judge Advocate General under R.C.M. 1201(b)(1); (2) a case in which the Court of Criminal Appeals has set aside the sentence; and (3) a case in which the sentence includes death (because review by the Court of Appeals for the Armed Forces is mandatory). The placing of a petition for review in proper military channels divests the Court of Criminal Appeals of jurisdiction over the case, and jurisdiction is thereby conferred on the Court of Appeals for the Armed Forces. See R.C.M. 1113 concerning action to be taken if the accused does not file or the Court of Appeals for the Armed Forces denies a petition for review.
When the accused has the right to petition the Court of Appeals for the Armed Forces for review, the receipt of the accused for the copy of the decision of the Court of Criminal Appeals, a certificate of service on the accused, or the postal receipt for delivery of certified mail shall be transmitted in duplicate by expeditious means to the appropriate Judge Advocate General. If the accused is personally served, the receipt or certificate of service shall show the date of service. The Judge Advocate General shall forward one copy of the receipt, certificate, or postal receipt to the clerk of the Court of Appeals for the Armed Forces when required by the court.
If the decision of the Court of Criminal Appeals is not subject to review by the Court of Appeals for the Armed Forces, or if the Judge Advocate General has not forwarded the case to the Court of Appeals for the Armed Forces and the accused has not filed or the Court of Appeals for the Armed Forces has denied a petition for review, the Judge Advocate General shall-
If the sentence affirmed by the Court of Criminal Appeals includes a dismissal, transmit the record, the decision of the Court of Criminal Appeals, and the Judge Advocate General's recommendation to the Secretary concerned for action under R.C.M. 1206; or
If the sentence affirmed by the Court of Criminal Appeals does not include a dismissal, notify the convening authority, the officer exercising general court-martial jurisdiction over the accused, or the Secretary concerned, as appropriate, who, subject to R.C.M. 1113(c)(1), may order into execution any unexecuted sentence affirmed by the Court of Criminal Appeals or take other action, as authorized.
See R.C.M. 1113, 1206, and Article 74(a) concerning the authority of the Secretary and others to take action.
Except as otherwise expressly provided in this rule, this rule does not apply to appeals by the Government under R.C.M. 908.
Under such rules as it may prescribe, the Court of Appeals for the Armed Forces shall review the record in all cases:
In which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;
Reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and
Reviewed by a Court of Criminal Appeals, except those referred to it by the Judge Advocate General under R.C.M. 1201(b)(1), in which, upon petition by the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.
See Article 67(a) concerning the composition of the Court of Appeals for the Armed Forces. In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. See Article 67(d) and (e). The rules of practice and procedure before the Court of Appeals for the Armed Forces are published in the Military Justice Reporter. The Court of Appeals for the Armed Forces may entertain petitions for extraordinary relief and may issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law. Any party may petition the Court of Appeals for the Armed Forces for extraordinary relief. However, in the interest of judicial economy, such petitions usually should be filed with and adjudicated before the appropriate Court of Criminal Appeals prior to submission to the Court of Appeals for the Armed Forces.
Armed Forces.
When the accused is notified of the right to forward a petition for review by the Court of Appeals for the Armed Forces, if requested by the accused, associate counsel qualified under R.C.M. 502(d)(1) shall be detailed to advise and assist the accused in connection with preparing a petition for further appellate review.
If reasonably available, the counsel who conducted the defense at trial may perform these duties. The counsel detailed to represent the accused should communicate with the appellate defense counsel representing the accused. See R.C.M. 1202.
The accused shall file any petition for review by the Court of Appeals for the Armed Forces under subsection (a)(3) of this rule directly with the Court of Appeals for the Armed Forces.
See Article 67(c) and R.C.M. 1203(d)(2) concerning notifying the accused of the right to petition the Court of Appeals for the Armed Forces for review and the time limits for submitting a petition. See also the rules of the Court of Appeals for the Armed Forces concerning when the time for filing a petition begins to run and when a petition is now timely.
After it has acted on a case, the Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further proceedings in accordance with the decision of the court. Otherwise, unless the decision is subject to review by the Supreme Court, or there is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the Court has ordered a rehearing, but the convening authority to whom the record is transmitted finds a rehearing impracticable, the convening authority may dismiss the charges.
See R.C.M. 1114 concerning final orders in the case. _ See also_ R.C.M. 1206 and Article 74(a).
If the Court of Appeals for the Armed Forces has affirmed a sentence that must be approved by the President before it may be executed, the Judge Advocate General shall transmit the record of trial, the decision of the Court of Criminal Appeals, the decision of the Court of Appeals for the Armed Forces, and the recommendation of the Judge Advocate General to the Secretary concerned.
If the Secretary concerned is the Secretary of a military department, the Secretary concerned shall forward the material received under paragraph (A) to the Secretary of Defense, together with the recommendation of the Secretary concerned. The Secretary of Defense shall forward the material, with the recommendation of the Secretary concerned and the recommendation of the Secretary of Defense, to the President for the action of the President.
If the Secretary concerned is the Secretary of Homeland Security, the Secretary concerned shall forward the material received under paragraph (A) to the President, together with the recommendation of the Secretary concerned, for the action of the President.
Discussion
See Article 71(a) and R.C.M. 1207.
If the Court of Appeals for the Armed Forces has affirmed a sentence which requires approval of the Secretary concerned before it may be executed, the Judge Advocate General shall follow the procedure in R.C.M. 1203(e)(1).
See Article 71(b) and R.C.M. 1206.
If the decision of the Court of Appeals for the Armed Forces is subject to review by the Supreme Court, the Judge Advocate General shall take no action under subsections (c)(1), (2), or (3) of this rule until:
(3). If the Supreme Court grants a writ of certiorari, the Judge Advocate General shall take action under R.C.M. 1205(b).
Under 28 U.S.C. § 1259 and Article 67(h), decisions of the Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases:
Cases reviewed by the Court of Appeals for the Armed Forces under Article 67(b)(1);
Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under Article 67(b)(2);
Cases in which the Court of Appeals for the Armed Forces granted a petition for review under Article 67(b)(3); and
Cases other than those described in subsections (a)(1), (2), and
of this rule in which the Court of Appeals for the Armed Forces granted relief. The Supreme Court may not review by writ of certiorari any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.
After the Supreme Court has taken action, other than denial of a petition for writ of certiorari, in any case, the Judge Advocate General shall, unless the case is returned to the Court of Appeals for the Armed Forces for further proceedings, forward the case to the President or the Secretary concerned in accordance with R.C.M. 1204(c)(2) or (3) when appropriate, or instruct the convening authority to take action in accordance with the decision.
No part of a sentence extending to dismissal of a commissioned officer, cadet, or midshipman may be executed until approved by the Secretary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary.
See Article 71(b).
The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary, Judge Advocate General, or commander may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures, other than a sentence approved by the President.
The Secretary concerned may, for good cause, substitute an administrative discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
When the President has commuted a death sentence to a lesser punishment, the Secretary concerned may remit or suspend any remaining part or amount of the unexecuted portion of the sentence of a person convicted by a military tribunal under the Secretary's jurisdiction.
No part of a court-martial sentence extending to death may be executed until approved by the President.
See Article 71(a). See also R.C.M. 1203 and 1204 concerning review by the Court of Criminal Appeals and Court of Appeals for the Armed Forces in capital cases.
All rights, privileges, and property affected by an executed portion of a court-martial sentence-except an executed dismissal or discharge-which has not again been adjudged upon a new trial or which, after the new trial, has not been sustained upon the action of any reviewing authority, shall be restored. So much of the findings and so much of the sentence adjudged at the earlier trial shall be set aside as may be required by the findings and sentence at the new trial. Ordinarily, action taken under this subsection shall be announced in the court-martial order promulgating the final results of the proceedings.
See Article 75(b) and (c) concerning the action to be taken on an executed dismissal or discharge which is not imposed at a new trial.
In cases other than those in subsection (a) of this rule, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved by any competent authority shall be restored unless a new trial, other trial, or rehearing is ordered and such executed part is included in a sentence imposed at the new trial, other trial, or rehearing. Ordinarily, any restoration shall be announced in the court-martial order promulgating the final results of the proceedings.
See R.C.M. 1114 concerning promulgating orders.
A court-martial conviction is final when:
The accused does not file a timely petition for review by the Court of Appeals for the Armed Forces and the case is not otherwise under review by that court;
A petition for review is denied or otherwise rejected by the Court of Appeals for the Armed Forces; or
Review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and-
A petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court,
A petition for writ of certiorari is denied or otherwise rejected by the Supreme Court, or
Review is otherwise completed in accordance with the judgment of the Supreme Court; or
Discussion
See R.C.M. 1201, 1203, 1204, and 1205 concerning cases subject to review by a Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. See also R.C.M. 1110.
The findings and sentence have been found legally sufficient by a judge advocate and, when action by such officer is required, have been approved by the officer exercising general court-martial jurisdiction over the accused at the time the court-martial was convened (or that officer's successor); or
The findings and sentence have been affirmed by the Judge Advocate General when review by the Judge Advocate General is required under R.C.M. 1112(g)(1) or 1201(b)(1).
The appellate review of records of trial provided by the code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by the code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by the code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial under Article 73, to action by the Judge Advocate General under Article 69(b), to action by the Secretary concerned as provided in Article 74, and the authority of the President.
At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the ground of newly discovered evidence or fraud on the court-martial. A petition may not be submitted after the death of the accused. A petition for a new trial of the facts may not be submitted on the basis of newly discovered evidence when the petitioner was found guilty of the relevant offense pursuant to a guilty plea.
A petition for a new trial may be submitted by the accused personally, or by accused's counsel, regardless whether the accused has been separated from the service.
A petition for a new trial shall be written and shall be signed under oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization of an appropriate court to sign the petition as the representative of the accused. The petition shall contain the following information, or an explanation why such matters are not included:
The name, service number, and current address of the accused;
The date and location of the trial;
The type of court-martial and the title or position of the convening authority;
The request for the new trial;
The sentence or a description thereof as approved or affirmed, with any later reduction thereof by clemency or otherwise;
A brief description of any finding or sentence believed to be unjust;
A full statement of the newly discovered evidence or fraud on the court-martial which is relied upon for the remedy sought;
Affidavits pertinent to the matters in subsection (c)(6) of this rule; and
The affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the witness.
The submission of a petition for a new trial does not stay the execution of a sentence.
If the accused's case is pending before a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise, the Judge Advocate General of the armed force which reviewed the previous trial shall act on the petition, except that petitions submitted by persons who, at the time of trial and sentence from which the petitioner seeks relief, were members of the Coast Guard, and who, and who were members of the Coast Guard at the time the petition is submitted, shall be acted on in the Department in which the Coast Guard is serving at the time the petition is so submitted.
A new trial may be granted only on grounds of newly discovered evidence or fraud on the court-martial.
A new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that:
The evidence was discovered after the trial;
The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and
The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.
No fraud on the court-martial warrants a new trial unless it had a substantial contributing effect on a finding of guilty or the sentence adjudged.
Examples of fraud on a court-martial which may warrant granting a new trial are: confessed or proved perjury in testimony or forgery of documentary evidence which clearly had a substantial contributing effect on a finding of guilty and without which there probably would not have been a finding of guilty of the offense; willful concealment by the prosecution from the defense of evidence favorable to the defense which, if presented to the court-martial, would probably have resulted in a finding of not guilty; and willful concealment of a material ground for challenge of the military judge or any member or of the disqualification of counsel or the convening authority, when the basis for challenge or disqualification was not known to the defense at the time of trial (see R.C.M. 912).
The authority considering the petition may cause such additional investigation to be made and such additional information to be secured as that authority believes appropriate. Upon written request, and in its discretion, the authority considering the petition may permit oral argument on the matter.
The Courts of Criminal Appeals and the Court of Appeals for the Armed Forces shall act on a petition for a new trial in accordance with their respective rules.
When a petition is considered by the Judge Advocate General, any hearing may be before the Judge Advocate General or before an officer or officers designated by the Judge Advocate General. If the Judge Advocate General believes meritorious grounds for relief under Article 74 have been established but that a new trial is not appropriate, the Judge Advocate General may act under Article 74 if authorized to do so, or transmit the petition and related papers to the Secretary concerned with a recommendation. The Judge Advocate General may also, in cases which have been finally reviewed but have not been reviewed by a Court of Criminal Appeals, act under Article 69.
See also R.C.M. 1201(b)(3).
At a new trial, the accused may not be tried for any offense of which the accused was found not guilty or upon which the accused was not tried at the earlier court-martial.
See also R.C.M. 810 concerning additional special rules which apply at a new trial. In other respects a new trial is conducted like any other court-martial.
The disposition of the record of a new trial is the same as for other courts-martial.
Court-martial orders promulgating the final action taken as a result of a new trial, including any restoration of rights, privileges, and property, shall be promulgated in accordance with R.C.M. 1114.
See Article 75 and R.C.M. 1208 concerning restoration of rights when the executed portion of a sentence is not sustained in a new trial or action following it.
Persons charged with the administrative duty of executing a sentence adjudged upon a new trial after it has been ordered executed shall credit the accused with any executed portion or amount of the original sentence included in the new sentence in computing the term or amount of punishment actually to be executed pursuant to the sentence.
A summary court-martial is composed of one commissioned officer on active duty. Unless otherwise prescribed by the Secretary concerned a summary court-martial shall be of the same armed force as the accused. Summary courts-martial shall be conducted in accordance with the regulations of the military service to which the accused belongs. Whenever practicable, a summary court-martial should be an officer whose grade is not below lieutenant of the Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps. When only one commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment. When more than one commissioned officer is present with a command or detachment, the convening authority may not be the summary court-martial of that command or detachment.
The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure. The summary court-martial shall thoroughly and impartially inquire into both sides of the matter and shall ensure that the interests of both the Government and the accused are safeguarded and that justice is done. A summary court-martial may seek advice from a judge advocate or legal officer on questions of law, but the summary court-martial may not seek advice from any person on factual conclusions which should be drawn from evidence or the sentence which should be imposed, as the summary court-martial has the independent duty to make these determinations.
For a definition of "minor offenses," see paragraph 1e, Part V.
[Note: R.C.M. 1301(c) applies to offenses committed on or after 24 June 2014.]
Subject to Chapter II, summary courts-martial have the power to try persons subject to the code, except commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by the code.
Notwithstanding subsection (c)(1) above, summary courts-martial do not have jurisdiction over offenses under Articles 120(a), 120(b), 120b(a), 120b(b), forcible sodomy under Article 125, and attempts thereof under Article 80, UCMJ. Such offenses shall not be referred to a summary court-martial.
Pursuant to the National Defense Authorization Act for Fiscal Year 2014, only a general court-martial has jurisdiction to try penetrative sex offenses under subsections (a) and (b) of Article 120, subsections (a) and (b) of Article 120b, Article 125, and attempts to commit such penetrative sex offenses under Article 80, UCMJ.
See R.C.M. 103(3) for a definition of capital offenses.
Subject to R.C.M. 1003, summary courts-martial may adjudge any punishment not forbidden by the code except death, dismissal, dishonorable or bad-conduct discharge, confinement for more than 1 month, hard labor without confinement for more than 45 days, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of 1 month's pay.
The maximum penalty which can be adjudged in a summary court-martial is confinement for 30 days, forfeiture of two-thirds pay per month for one month, and reduction to the lowest pay grade. See subsection
In the case of enlisted members above the fourth enlisted pay grade, summary courts-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next pay grade.
The provisions of this subsection apply to an accused in the fifth enlisted pay grade who is reduced to the fourth enlisted pay grade by the summary court-martial.
The accused at a summary court-martial does not have the right to counsel. If the accused has civilian counsel provided by the accused and qualified under R.C.M. 502(d)(3), that counsel shall be permitted to represent the accused at the summary court-martial if such appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.
Neither the Constitution nor any statute establishes any right to counsel at summary courts-martial. Therefore, it is not error to deny an accused the opportunity to be represented by counsel at a summary court-martial. However, appearance of counsel is not prohibited. The detailing authority may, as a matter of discretion, detail, or otherwise make available, a military attorney to represent the accused at a summary court-martial.
A summary court-martial may obtain evidence pursuant to R.C.M. 703.
The summary court-martial must obtain witnesses for the prosecution and the defense pursuant to the standards in R.C.M. 703. The summary court-martial rules on any request by the accused for witnesses or evidence in accordance with the procedure in R.C.M. 703(c) and (f).
The Secretary concerned may prescribe procedural or other rules for summary courts-martial not inconsistent with this Manual or the code.
Unless limited by competent authority summary courts-martial may be convened by:
Any person who may convene a general or special court-martial;
The commander of a detached company or other detachment of the Army;
The commander of a detached squadron or other detachment of the Air Force;
The commander or officer in charge of any other command when empowered by the Secretary concerned; or
A superior competent authority to any of the above.
After the requirements of Chapters III and IV of this Part have been satisfied, summary courts-martial shall be convened in accordance with R.C.M. 504(d)(2). The convening order may be by notation signed by the convening authority on the charge sheet. Charges shall be referred to summary courts-martial in accordance with R.C.M. 601.
When the convening authority is the summary court-martial because the convening authority is the only commissioned officer present with the command or detachment, _ see_ R.C.M. 1301(a), that fact should be noted on the charge sheet.
No person who objects thereto before arraignment may be tried by summary court-martial even if that person also refused punishment under Article 15 and demanded trial by court-martial for the same offenses.
If the accused objects to trial by summary court-martial, the convening authority may dispose of the case in accordance with R.C.M. 401.
The summary court-martial shall carefully examine the charge sheet, allied papers, and immediately available personnel records of the accused before trial.
"Personnel records" are those personnel records of the accused which are maintained locally and are immediately available. "Allied papers" in a summary court-martial include convening orders, investigative reports, correspondence relating to the case, and witness statements.
The summary court-martial shall report to the convening authority any substantial irregularity in the charge sheet, allied papers, or personnel records.
The summary court-martial should examine the charge sheet, allied papers, and personnel records to ensure that they are complete and free from errors or omissions which might affect admissibility. The summary court-martial should check the charges and specifications to ensure that each alleges personal jurisdiction over the accused (see R.C.M. 202) and an offense under the code (see R.C.M. 203 and Part IV). Substantial defects or errors in the charges and specifications must be reported to the convening authority, since such defects cannot be corrected except by preferring and referring the affected charge and specification anew in proper form. A defect or error is substantial if correcting it would state an offense not otherwise stated, or include an offense, person, or matter not fairly included in the specification as preferred. See subsection (3) below concerning minor errors.
The summary court-martial may, subject to R.C.M. 603, correct errors on the charge sheet and amend charges and specifications. Any such corrections or amendments shall be initialed.
A sample guide is at Appendix 9. The summary court-martial should review and become familiar with the guide used before proceeding.
After complying with R.C.M. 1304(a), the summary court-martial shall hold a preliminary proceeding during which the accused shall be given a copy of the charge sheet and informed of the following:
The general nature of the charges;
The fact that the charges have been referred to a summary court-martial for trial and the date of referral;
The identity of the convening authority;
The name(s) of the accuser(s);
The names of the witnesses who could be called to testify and any documents or physical evidence which the summary court-martial expects to introduce into evidence;
The accused's right to inspect the allied papers and immediately available personnel records;
That during the trial the summary court-martial will not consider any matters, including statements previously made by the accused to the officer detailed as summary court-martial unless admitted in accordance with the Military Rules of Evidence;
The accused's right to plead not guilty or guilty;
The accused's right to cross-examine witnesses and have the summary court-martial cross-examine witnesses on behalf of the accused;
The accused's right to call witnesses and produce evidence with the assistance of the summary court-martial as necessary;
The accused's right to testify on the merits, or to remain silent with the assurance that no adverse inference will be drawn by the summary court-martial from such silence;
If any findings of guilty are announced, the accused's rights to remain silent, to make an unsworn statement, oral or written or both, and to testify, and to introduce evidence in extenuation or mitigation;
The maximum sentence which the summary court-martial may adjudge if the accused is found guilty of the offense or offenses alleged; and
The accused's right to object to trial by summary court-martial.
The summary court-martial shall give the accused a reasonable period of time to decide whether to object to trial by summary court-martial. The summary court-martial shall thereafter record the response. If the accused objects to trial by summary court-martial, the summary court-martial shall return the charge sheet, allied papers, and personnel records to the convening authority. If the accused fails to object to trial by summary court-martial, trial shall proceed.
After complying with R.C.M. 1304(b)(1) and (2)(A), the summary court-martial shall read and show the charges and specifications to the accused and, if necessary, explain them. The accused may waive the reading of the charges. The summary court-martial shall then ask the accused to plead to each specification and charge.
Before receiving pleas the summary court-martial shall allow the accused to make motions to dismiss or for other relief. The summary court-martial shall take action on behalf of the accused, if requested by the accused, or if it appears necessary in the interests of justice.
When a not guilty plea is entered, the summary court-martial shall proceed to trial.
If the accused pleads guilty to any offense, the summary court-martial shall comply with R.C.M. 910.
If the summary court-martial is in doubt that the accused's pleas of guilty are voluntarily and understandingly made, or if at any time during the trial any matter inconsistent with pleas of guilty arises, which inconsistency cannot be resolved, the summary court-martial shall enter not guilty pleas as to the affected charges and specifications.
If the accused refuses to plead, the summary court-martial shall enter not guilty pleas.
The accused may change any plea at any time before findings are announced. The accused may change pleas from guilty to not guilty after findings are announced only for good cause.
The Military Rules of Evidence (Part III) apply to summary courts-martial.
The summary court-martial shall arrange for the attendance of necessary witnesses for the prosecution and defense, including those requested by the accused.
Discussion
See R.C.M. 703. Ordinarily witnesses should be excluded from the courtroom until called to testify. See Mil. R. Evid. 615.
Witnesses for the prosecution shall be called first and examined under oath. The accused shall be permitted to cross-examine these witnesses. The summary court-martial shall aid the accused in cross-examination if such assistance is requested or appears necessary in the interests of justice. The witnesses for the accused shall then be called and similarly examined under oath.
The summary court-martial shall obtain evidence which tends to disprove the accused's guilt or establishes extenuating circumstances.
Discussion
See R.C.M. 703 and 1001.
The summary court-martial shall apply the principles in R.C.M. 918 in determining the findings. The summary court-martial shall announce the findings to the accused in open session.
The summary court-martial shall follow the procedures in R.C.M. 1001 and apply the principles in the remainder of Chapter X in determining a sentence. The summary court-martial shall announce the sentence to the accused in open session.
If the sentence includes confinement, the summary court-martial shall advise the accused of the right to apply to the convening authority for deferment of the service of the confinement.
If the accused is found guilty, the summary court-martial shall advise the accused of the rights under R.C.M. 1306(a) and (d) after the sentence is announced.
The summary court-martial shall, as soon as practicable, inform the convening authority of the findings, sentence, recommendations, if any, for suspension of the sentence, and any deferment request.
If the sentence includes confinement, the summary court-martial shall cause the delivery of the accused to the accused's commanding officer or the commanding officer's designee.
Discussion
If the accused's immediate commanding officer is not the convening authority, the summary court-martial should ensure that the immediate commanding officer is informed of the findings, sentence, and any recommendations pertaining thereto. See R.C.M. 1101 concerning post-trial confinement.
The record of trial of a summary court-martial shall be prepared as prescribed in subsection (b) of this rule. The convening or higher authority may prescribe additional requirements for the record of trial.
See Appendix 15 for a sample of a Record of Trial by Summary Court-Martial (DD Form 2329). Any petition submitted under R.C.M. 1306(a) should be appended to the record of trial.
The summary court-martial shall prepare a written record of trial, which shall include:
The pleas, findings, and sentence, and if the accused was represented by counsel at the summary court-martial, a notation to that effect;
The fact that the accused was advised of the matters set forth in R.C.M. 1304(b)(1);
If the summary court-martial is the convening authority, a notation to that effect.
The summary court-martial shall authenticate the record by signing the record of trial. An electronic record of trial may be authenticated with the electronic signature of the summary court-martial.
"Authentication" means attesting that the record accurately reports the proceedings. See R.C.M. 1104(a).
The summary court-martial shall cause a copy of the record of trial to be served on the accused as soon as it is authenticated. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under this rule.
The summary court-martial shall cause the accused's receipt for the copy of the record of trial to be obtained and attached to the original record of trial or shall attach to the original record of trial a certificate that the accused was served a copy of the record. If the record of trial was not served on the accused personally, the summary court-martial shall attach a statement explaining how and when such service was accomplished. If the accused was represented by counsel, such counsel may be served with the record of trial.
If classified information is included in the record of trial of a summary court-martial, R.C.M. 1104(b)(1)(D) shall apply.
After compliance with R.C.M. 1306(b) and (c), the record of trial shall be disposed of under regulations prescribed by the Secretary concerned.
After a sentence is adjudged, a crime victim may submit a written statement to the convening authority in accordance with R.C.M. 1105A. A statement submitted by a crime victim shall be immediately served on the accused.
After a sentence is adjudged, the accused may submit written matters to the convening authority in accordance with R.C.M. 1105.
Unless otherwise prescribed by regulations of the Secretary concerned, the original record of the summary court-martial shall be reviewed by a judge advocate in accordance with R.C.M. 1112.
The accused may request review of a final conviction by summary court-martial by the Judge Advocate General in accordance with R.C.M. 1201(b)(3).
These rules apply to courts-martial proceedings to the extent and with the exceptions stated in Mil. R. Evid. 1101.
In the absence of guidance in this Manual or these rules, courts-martial will apply:
First, the Federal Rules of Evidence and the case law interpreting them; and
Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.
Except as otherwise provided in these rules, the term "military judge" includes the president of a special court-martial without a military judge and a summary court-martial officer.
Discussion was added to these Rules in 2013. The Discussion itself does not have the force of law, even though it may describe legal requirements derived from other sources. It is in the nature of treatise, and may be used as secondary authority. If a matter is included in a rule, it is intended that the matter be binding, unless it is clearly expressed as precatory. The Discussion will be revised from time to time as warranted by changes in applicable law. See Composition of the Manual for Courts-Martial in Appendix 21.
Practitioners should also refer to the Analysis of the Military Rules of Evidence contained in Appendix 22 of this Manual. The Analysis is similar to Committee Notes accompanying the Federal Rules of Evidence and is intended to address the basis of the rule, deviation from the Federal Rules of Evidence, relevant precedent, and drafters' intent.
These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and:
timely objects or moves to strike; and
states the specific ground, unless it was apparent from the context; or
Once the military judge rules definitively on the record admitting or excluding evidence, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
The standard provided in subdivision (a)(2) does not apply to errors implicating the United States Constitution as it applies to members of the Armed Forces, unless the error arises under these rules and subdivision (a)(2) provides a standard that is more advantageous to the accused than the constitutional standard.
The military judge may make any statement about the character or form of the evidence, the objection made, and the ruling. The military judge may direct that an offer of proof be made in question-and-answer form.
In a court-martial composed of a military judge and members, to the extent practicable, the military judge must conduct a trial so that inadmissible evidence is not suggested to the members by any means.
A military judge may take notice of a plain error that materially prejudices a substantial right, even if the claim of error was not properly preserved.
The military judge must decide any preliminary question about whether a witness is available or qualified, a privilege exists, a continuance should be granted, or evidence is admissible. In so deciding, the military judge is not bound by evidence rules, except those on privilege.
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The military judge may admit the proposed evidence on the condition that the proof be introduced later. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary.
Except in cases tried before a special court-martial without a military judge, the military judge must conduct any hearing on a preliminary question so that the members cannot hear it if:
the hearing involves the admissibility of a statement of the accused under Mil. R. Evid. 301-306;
the accused is a witness and so requests; or
justice so requires.
By testifying on a preliminary question, the accused does not become subject to cross-examination on other issues in the case.
This rule does not limit a party's right to introduce before the members evidence that is relevant to the weight or credibility of other evidence.
If the military judge admits evidence that is admissible against a party or for a purpose - but not against another party or for another purpose - the military judge, on timely request, must restrict the evidence to its proper scope and instruct the members accordingly.
This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
The military judge may judicially notice a fact that is not subject to reasonable dispute because it:
is generally known universally, locally, or in the area pertinent to the event; or
can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
The military judge:
may take judicial notice whether requested or not; or
must take judicial notice if a party requests it and the military judge is supplied with the necessary information.
The military judge must inform the parties in open court when, without being requested, he or she takes judicial notice of an adjudicative fact essential to establishing an element of the case.
The military judge may take judicial notice at any stage of the proceeding.
On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the military judge takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
The military judge must instruct the members that they may or may not accept the noticed fact as conclusive.
The military judge may take judicial notice of domestic law. If a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of Mil. R. Evid. 201 - except Rule 201(f) - apply.
A party who intends to raise an issue concerning the law of a foreign country must give reasonable written notice. The military judge, in determining foreign law, may consider any relevant material or source, in accordance with Mil. R. Evid. 104. Such a determination is a ruling on a question of law.
Evidence is relevant if:
it has any tendency to make a fact more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.
the United States Constitution as it applies to members of the Armed Forces;
a federal statute applicable to trial by courts-martial;
these rules; or
this Manual.
The military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence.
Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Articles 120-123a;
Articles 125-127;
Articles 129-132;
Any other offense in which evidence of general military character of the accused is not relevant to any element of an offense for which the accused has been charged; or
An attempt or conspiracy to commit one of the above offenses.
offer evidence to rebut it; and
offer evidence of the accused's same trait; and
Evidence of a witness's character may be admitted under Mil R. Evid. 607, 608, and 609.
Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by the accused, the prosecution must:
provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial; and
do so before trial - or during trial if the military judge, for good cause, excuses lack of pretrial notice.
When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the military judge may allow an inquiry into relevant specific instances of the person's conduct.
When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.
"Reputation" means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. "Community" in the Armed Forces includes a post, camp, ship, station, or other military organization regardless of size.
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The military judge may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.
Evidence of the following is not admissible - on behalf of any party - either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
furnishing, promising, or offering - or accepting, promising to accept, or offering to accept - a valuable consideration in order to compromise the claim; and
conduct or a statement made during compromise negotiations about the claim - except when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice or proving agency, ownership, or control.
The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):
Evidence offered to prove that any alleged victim engaged in other sexual behavior.
Evidence offered to prove any alleged victim's sexual predisposition.
evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
evidence the exclusion of which would violate the constitutional rights of the accused.
file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including victims' counsel under section 1044e of title 10, United States Code. In a case before a court-martial comprised of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and remain under seal unless the military judge or an appellate court orders otherwise.
If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.
For purposes of this rule, the term "sexual offense" includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. "Sexual behavior" includes any sexual behavior not encompassed by the alleged offense. The term "sexual predisposition" refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the factfinder.
A "nonconsensual sexual offense" is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.
In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.
If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including any witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.
This rule does not limit the admission or consideration of evidence under any other rule.
As used in this rule, "sexual offense" means an offense punishable under the Uniform Code of Military Justice, or a crime under federal or state law (as "state" is defined in 18 U.S.C. § 513), involving:
any conduct prohibited by Article 120;
any conduct prohibited by 18 U.S.C. chapter 109A;
contact, without consent, between any part of the accused's body, or an object held or controlled by the accused, and another person's genitals or anus;
contact, without consent, between the accused's genitals or anus and any part of another person's body;
contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
an attempt or conspiracy to engage in conduct described in subdivisions (d)(1)-(5).
In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.
If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.
This rule does not limit the admission or consideration of evidence under any other rule.
As used in this rule:
"Child" means a person below the age of 16; and
"Child molestation" means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513), that involves:
any conduct prohibited by Article 120 and committed with a child;
any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;
any conduct prohibited by 18 U.S.C. chapter 110;
contact between any part of the accused's body, or an object held or controlled by the accused, and a child's genitals or anus;
contact between the accused's genitals or anus and any part of a child's body;
contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or
an attempt or conspiracy to engage in conduct described in subdivisions (d)(2)(A)-(F).
the United States Constitution as applied to members of the Armed Forces;
a federal statute applicable to trials by courts-martial;
these rules;
this Manual; or
the principles of common law generally recognized in the trial of criminal cases in the United States district courts under rule 501 of the Federal Rules of Evidence, insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual.
refuse to be a witness;
refuse to disclose any matter;
refuse to produce any object or writing; or
prevent another from being a witness or disclosing any matter or producing any object or writing.
The term "person" includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.
Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
between the client or the client's representative and the lawyer or the lawyer's representative;
between the lawyer and the lawyer's representative;
by the client or the client's lawyer to a lawyer representing another in a matter of common interest;
between representatives of the client or between the client and a representative of the client; or
between lawyers representing the client.
As used in this rule:
"Client" means a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.
"Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the Armed Forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term "lawyer" does not include a member of the Armed Forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined in Article 1, unless the member:
is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;
is authorized by the Armed Forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the Armed Forces; or
is authorized to practice law and renders professional legal services during off-duty employment.
"Lawyer's representative" means a person employed by or assigned to assist a lawyer in providing professional legal services.
A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.
There is no privilege under this rule under any of the following circumstances:
If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;
As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
As to a communication relevant to a matter of common interest between
two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.
As used in this rule:
"Clergyman" means a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.
"Clergyman's assistant" means a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.
A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.
The privilege may be claimed by the person, guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary.
A person has a privilege to refuse to testify against his or her spouse.
A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.
As used in this rule, a communication is "confidential" if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.
The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.
There is no privilege under subdivision (a) when, at the time the testimony of one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced or the marriage has been annulled.
There is no privilege under subdivisions (a) or (b):
In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;
When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or
In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 18 U.S.C. §1328; with transporting the other spouse in interstate commerce for immoral purposes or other offense in violation of 18 U.S.C. §§ 2421-2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.
Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b) and are not entitled to protection under the privilege in subdivision (b).
As used in this rule:
an individual under the age of 18; or
an individual with a mental handicap who functions under the age of 18.
Classified information must be protected and is privileged from disclosure if disclosure would be detrimental to the national security. Under no circumstances may a military judge order the release of classified information to any person not authorized to receive such information. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities.
As used in this rule:
"Classified information" means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 42 U.S.C. §2014(y).
"National security" means the national defense and foreign relations of the United States.
"In camera hearing" means a session under Article 39(a) from which the public is excluded.
"In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.
"Ex parte" means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect classified information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.
Any information admitted into evidence pursuant to any rule, procedure, or order by the military judge must be provided to the accused.
Trial counsel should, when practicable, seek declassification of evidence that may be used at trial, consistent with the requirements of national security. A decision not to declassify evidence under this section is not subject to review by a military judge or upon appeal.
delete specified items of classified information from documents made available to the accused;
substitute a portion or summary of the information for such classified documents;
substitute a statement admitting relevant facts that the classified information would tend to prove;
provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or
withhold disclosure if actions under (A) through (D) cannot be taken without causing identifiable damage to the national security.
An Article 32 investigating officer may not rule on any objection by the accused to the release of documents or information protected by this rule.
Any objection by the accused to the withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference.
At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).
Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect classified information from disclosure.
At the pretrial conference, the military judge must establish the timing of:
requests for discovery;
the provision of notice required by subdivision (i) of this rule; and
established by subdivision (j) of this rule.
At the pretrial conference, the military judge may also consider any matter that relates to classified information or that may promote a fair and expeditious trial.
If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the classified information relates.
Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any classified information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions.
prohibiting the disclosure of the information except as authorized by the military judge;
requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;
requiring controlled access to the material during normal business hours and at other times upon reasonable notice;
mandating that all persons requiring security clearances will cooperate with investigatory personnel in any investigations that are necessary to obtain a security clearance;
requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense;
regulating the making and handling of notes taken from material containing classified information; or
requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.
In a court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information, the trial counsel must submit a declaration invoking the United States' classified information privilege and setting forth the damage to the national security that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by the head, or designee, of the executive or military department or government agency concerned.
Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative and relevant to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such classified information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).
The military judge, in assessing the accused's right to discover or access classified information under subdivision (h), may authorize the government:
to delete or withhold specified items of classified information;
to substitute a summary for classified information; or
to substitute a statement admitting relevant facts that the classified information or material would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial.
The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.
The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.
An order of a military judge authorizing a request of the trial counsel to substitute, summarize, withhold, or prevent access to classified information under subdivision (h) is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte showing under subdivision (h).
If an accused reasonably expects to disclose, or to cause the disclosure of, classified information in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.
Such notice must include a brief description of the classified information.
Whenever the accused learns of additional classified information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the classified information.
The accused may not disclose, or cause the disclosure of, any information known or believed to be classified in connection with a trial or pretrial proceeding until:
notice has been given under subdivision (i); and
the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).
If the accused fails to comply with the requirements of subdivision (i), the military judge:
may preclude disclosure of any classified information not made the subject of notification; and
may prohibit the examination by the accused of any witness with respect to any such information.
Within the time specified by the military judge for the filing of a motion under this rule, either party may move for a hearing concerning the use at any proceeding of any classified information. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.
Any hearing held pursuant to subdivision (j) (or any portion of such hearing specified in the request of a knowledgeable United States official) must be held in camera if a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration that a public proceeding may result in the disclosure of classified information.
Before the hearing, trial counsel must provide the accused with notice of the classified information that is at issue. Such notice must identify the specific classified information at issue whenever that information previously has been made available to the accused by the United States. When the United States has not previously made the information available to the accused in connection with the case the information may be described by generic category, in such forms as the military judge may approve, rather than by identification of the specific information of concern to the United States.
Classified information is not subject to disclosure under subdivision (j) unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence. In presentencing proceedings, relevant and material classified information pertaining to the appropriateness of, or the appropriate degree of, punishment must be admitted only if no unclassified version of such information is available.
As to each item of classified information, the military judge must set forth in writing the basis for the determination.
Upon any determination by the military judge authorizing the disclosure of specific classified information under the procedures established by subdivision (j), the trial counsel may move that, in lieu of the disclosure of such specific classified information, the military judge order:
the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove;
the substitution for such classified information of a summary of the specific classified information; or
any other procedure or redaction limiting the disclosure of specific classified information.
The trial counsel may, in connection with a motion under subdivision (j), submit to the military judge a declaration signed by the head, or designee, of the executive or military department or government agency concerned certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the trial counsel, the military judge must examine such declaration during an in camera review.
The military judge must hold a hearing on any motion under subdivision (j). Any such hearing must be held in camera at the request of a knowledgeable United States official possessing authority to classify information.
The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific classified information.
If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.
striking or precluding all or part of the testimony of a witness;
declaring a mistrial;
finding against the government on any issue as to which the evidence is relevant and material to the defense;
dismissing the charges, with or without prejudice; or
dismissing the charges or specifications or both to which the information relates.
Whenever the military judge determines that classified information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the classified information.
The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.
If the prosecution fails to comply with its obligation under subdivision (j), the military judge:
may exclude any evidence not made the subject of a required disclosure; and
may prohibit the examination by the prosecution of any witness with respect to such information.
After a witness called by the trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of statements of the witness in the possession of the prosecution that relate to the subject matter as to which the witness has testified. This paragraph does not preclude discovery or assertion of a privilege otherwise authorized.
If the government invokes a privilege, the trial counsel may provide the prior statements of the witness to the military judge for in camera review to the extent necessary to protect classified information from disclosure.
If the military judge finds that disclosure of any portion of the statement identified by the government as classified would be detrimental to the national security in the degree required to warrant classification under the applicable Executive Order, statute, or regulation, that such portion of the statement is consistent with the testimony of the witness, and that the disclosure of such portion is not necessary to afford the accused a fair trial, the military judge must excise that portion from the statement. If the military judge finds that such portion of the statement is inconsistent with the testimony of the witness or that its disclosure is necessary to afford the accused a fair trial, the military judge must, upon the request of the trial counsel, consider alternatives to disclosure in accordance with subdivision (j)(2).
Writings, recordings, and photographs containing classified information may be admitted into evidence in court-martial proceedings under this rule without change in their classification status.
The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of classified information, may order admission into evidence of only part of a writing, recording, or photograph, or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein, unless the whole ought in fairness be considered.
The military judge must allow classified information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the government, seal exhibits containing classified information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of classified information when a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration setting forth the damage to the national security that the disclosure of such information reasonably could be expected to cause.
During the examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible.
Following an objection under subdivision (k), the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classified information from disclosure.
The military judge may, subject to the requirements of the United States Constitution, exclude the public during that portion of the presentation of evidence that discloses classified information.
If under this rule any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the prosecution's motion and any materials submitted in support thereof must be sealed in accordance with R.C.M. 1103A and attached to the record of trial as an appellate exhibit. Such material must be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge. The record of trial with respect to any classified matter will be prepared under R.C.M. 1103(h) and 1104(b)(1)(D).
In addition to the Sixth Amendment right of an accused to a public trial, the Supreme Court has held that the press and general public have a constitutional right under the First Amendment to access to criminal trials. United States v. Hershey, 20 M.J. 433, 436 (C.M.A. 1985) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). The test that must be met before closure of a criminal trial to the public is set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), to wit: the presumption of openness "may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The military judge must consider reasonable alternatives to closure and must make adequate findings supporting the closure to aid in review.
Except where disclosure is required by a federal statute, government information is privileged from disclosure if disclosure would be detrimental to the public interest.
"Government information" includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to classified information (Mil. R. Evid. 505) or to the identity of an informant (Mil. R. Evid. 507).
As used in this rule:
"In camera hearing" means a session under Article 39(a) from which the public is excluded.
"In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.
"Ex parte" means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect government information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.
The privilege may be claimed by the head, or designee, of the executive or military department or government agency concerned. The privilege for records and information of the Inspector General may be claimed by the immediate superior of the inspector general officer responsible for creation of the records or information, the Inspector General, or any other superior authority. A person who may claim the privilege may authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or the trial counsel to do so is presumed in the absence of evidence to the contrary.
delete specified items of government information claimed to be privileged from documents made available to the accused;
substitute a portion or summary of the information for such documents;
substitute a statement admitting relevant facts that the government information would tend to prove;
provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or
withhold disclosure if actions under subdivisions (e)(1)(1)-(4) cannot be taken without causing identifiable damage to the public interest.
At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to government information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).
Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect government information from disclosure.
At the pretrial conference, the military judge must establish the timing of:
requests for discovery;
the provision of notice required by subdivision (i) of this rule; and
the initiation of the procedure established by subdivision (j) of this rule.
At the pretrial conference, the military judge may also consider any matter which relates to government information or which may promote a fair and expeditious trial.
If after a reasonable period of time the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the information relates.
Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any government information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions:
prohibiting the disclosure of the information except as authorized by the military judge;
requiring storage of the material in a manner appropriate for the nature of the material to be disclosed;
requiring controlled access to the material during normal business hours and at other times upon reasonable notice;
requiring the maintenance of logs recording access by persons authorized by the military judge to have access to the government information in connection with the preparation of the defense;
regulating the making and handling of notes taken from material containing government information; or
requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.
In a court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any government information subject to a claim of privilege, the trial counsel must submit a declaration invoking the United States' government information privilege and setting forth the detriment to the public interest that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by a knowledgeable United States official as described in subdivision (d) of this rule.
Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such government information unless the military judge determines that such government information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such government information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).
The military judge, in assessing the accused's right to discover or access government information under subdivision (h), may authorize the government:
to delete or withhold specified items of government information;
to substitute a summary for government information; or
to substitute a statement admitting relevant facts that the government information or material would tend to prove, unless the military judge determines that disclosure of the government information itself is necessary to enable the accused to prepare for trial.
The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.
The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific government information.
If an accused reasonably expects to disclose, or to cause the disclosure of, government information subject to a claim of privilege in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.
Such notice must include a brief description of the government information.
Whenever the accused learns of additional government information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the government information.
The accused may not disclose, or cause the disclosure of, any information known or believed to be subject to a claim of privilege in connection with a trial or pretrial proceeding until:
notice has been given under subdivision (i); and
the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).
If the accused fails to comply with the requirements of subdivision (i), the military judge:
may preclude disclosure of any government information not made the subject of notification; and
may prohibit the examination by the accused of any witness with respect to any such information.
Within the time specified by the military judge for the filing of a motion under this rule, either party may move for an in camera hearing concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.
Any hearing held pursuant to subdivision (j) must be held in camera if a knowledgeable United States official described in subdivision (d) of this rule submits to the military judge a declaration that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.
Subject to subdivision (j)(2) below, the prosecution must disclose government information claimed to be privileged under this rule for the limited purpose of litigating, in camera, the admissibility of the information at trial. The military judge must enter an appropriate protective order to the accused and all other appropriate trial participants concerning the disclosure of the information according to subdivision (g), above. The accused may not disclose any information provided under subdivision (j) unless, and until, such information has been admitted into evidence by the military judge. In the in camera hearing, both parties may have the opportunity to brief and argue the admissibility of the government information at trial.
Government information is subject to disclosure at the court-martial proceeding under subdivision (j) if the party making the request demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence or to punishment of the accused, and is otherwise admissible in the court-martial proceeding.
As to each item of government information, the military judge must set forth in writing the basis for the determination.
Upon any determination by the military judge authorizing disclosure of specific government information under the procedures established by subdivision (j), the prosecution may move that, in lieu of the disclosure of such information, the military judge order:
the substitution for such government information of a statement admitting relevant facts that the specific government information would tend to prove;
the substitution for such government information of a summary of the specific government information; or
any other procedure or redaction limiting the disclosure of specific government information.
The military judge must hold a hearing on any motion under subdivision (j). At the request of the trial counsel, the military judge will conduct an in camera hearing.
The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific government information.
If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the government information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.
striking or precluding all or part of the testimony of a witness;
declaring a mistrial;
finding against the government on any issue as to which the evidence is relevant and necessary to the defense;
dismissing the charges, with or without prejudice; or
dismissing the charges or specifications or both to which the information relates.
Whenever the military judge determines that government information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the government information.
The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.
If the prosecution fails to comply with its obligation under subdivision (j), the military judge may make such ruling as the interests of justice require, to include:
excluding any evidence not made the subject of a required disclosure; and
prohibiting the examination by the prosecution of any witness with respect to such information.
In a court-martial in which a punitive discharge may be adjudged, the government may appeal an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification, directs the disclosure of government information, or imposes sanctions for nondisclosure of government information. The government may also appeal an order or ruling in which the military judge refuses to issue a protective order sought by the United States to prevent the disclosure of government information, or to enforce such an order previously issued by appropriate authority. The government may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification.
The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this rule, may order admission into evidence of only part of a writing, recording, or photograph or admit into evidence the whole writing, recording, or photograph with excision of some or all of the government information contained therein, unless the whole ought in fairness to be considered.
The military judge must allow government information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the prosecution, seal exhibits containing government information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of government information when a knowledgeable United States official described in subdivision (d) submits to the military judge a declaration setting forth the detriment to the public interest that the disclosure of such information reasonably could be expected to cause.
During examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose government information not previously found admissible if such information has been or is reasonably likely to be the subject of a claim of privilege under this rule.
Following such an objection, the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect government information from disclosure.
If under this rule any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the prosecution's motion and any materials submitted in support thereof must be sealed in accordance with R.C.M. 1103A and attached to the record of trial as an appellate exhibit. Such material must be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.
The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant's identity.
As used in this rule:
"Informant" means a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of crime.
"In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.
The privilege may be claimed by an appropriate representative of the United States, regardless of whether information was furnished to an officer of the United States or a State or subdivision thereof. The privilege may be claimed by an appropriate representative of a State or subdivision if the information was furnished to an officer thereof, except the privilege will not be allowed if the prosecution objects.
No privilege exists under this rule:
if the identity of the informant has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informant's own action; or
if the informant appears as a witness for the prosecution.
If a claim of privilege has been made under this rule, the military judge must, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charged, the possible defense, the possible significance of the informant's testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice.
If a claim of privilege has been made under this rule with respect to a motion under Mil. R. Evid. 311, the military judge must, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the United States Constitution as applied to members of the Armed Forces. In making this determination, the military judge may make any order required by the interests of justice.
If the accused has articulated a basis for disclosure under the standards set forth in this rule, the prosecution may ask the military judge to conduct an in camera review of affidavits or other evidence relevant to disclosure.
If a claim of privilege has been made under this rule, the military judge may make any order required by the interests of justice.
If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charge or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused.
A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
Except as provided in Mil. R. Evid. 606, the deliberations of courts, courts-martial, military judges, and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged.
A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. This rule does not apply if the disclosure is itself a privileged communication.
Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or communication.
Evidence of a statement or other disclosure of privileged matter
is not admissible against the holder of the privilege if disclosure was
compelled erroneously or was made without an opportunity for the holder
of the privilege to claim the privilege.
The telephonic transmission of information otherwise privileged under these rules does not affect its privileged character. Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under these rules does not affect the privileged character of such information if use of such means of communication is necessary and in furtherance of the communication.
The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn therefrom.
The claim of a privilege by a person other than the accused whether in the present proceeding or upon a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An adverse inference may not be drawn there from except when determined by the military judge to be required by the interests of justice.
In a trial before a court-martial with members, proceedings must be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the members. Subdivision (b) does not apply to a special court-martial without a military judge.
Upon request, any party against whom the members might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn there from except as provided in subdivision (a)(2).
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.
As used in this rule:
"Patient" means a person who consults with or is examined or interviewed by a psychotherapist for purposes of advice, diagnosis, or treatment of a mental or emotional condition.
"Psychotherapist" means a psychiatrist, clinical psychologist, clinical social worker, or other mental health professional who is licensed in any State, territory, possession, the District of Columbia, or Puerto Rico to perform professional services as such, or who holds credentials to provide such services as such, or who holds credentials to provide such services from any military health care facility, or is a person reasonably believed by the patient to have such license or credentials.
"Assistant to a psychotherapist" means a person directed by or assigned to assist a psychotherapist in providing professional services, or is reasonably believed by the patient to be such.
A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication.
"Evidence of a patient's records or communications" means testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same, for the purposes of diagnosis or treatment of the patient's mental or emotional condition.
The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psycho~therapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.
There is no privilege under this rule:
when the patient is dead;
when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;
when federal law, state law, or service regulation imposes a duty to report information contained in a communication;
when a psychotherapist or assistant to a psychotherapist believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;
if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;
when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;
when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice; or
file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
serve the motion on the opposing party, the military judge and, if practical, notify the patient or the patient's guardian, conservator, or representative that the motion has been filed and that the patient has an opportunity to be heard as set forth in subdivision (e)(2).
Before ordering the production or admission of evidence of a patient's records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence. The patient must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including victims' counsel under section 1044e of title 10, United States Code. In a case before a court-martial comprised of a military judge and members, the military judge must conduct the hearing outside the presence of the members.
The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:
a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;
that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;
that the information sought is not merely cumulative of other information available; and
that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.
Any production or disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) above and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) above.
To prevent unnecessary disclosure of evidence of a patient's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.
The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.
A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.
As used in this rule:
"Victim" means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense.
"Victim advocate" means a person who:
is designated in writing as a victim advocate in accordance with service regulation;
is authorized to perform victim advocate duties in accordance with service regulation and is acting in the performance of those duties; or
is certified as a victim advocate pursuant to federal or state requirements.
Department of Defense Safe Helpline staff" is a person who is designated by competent authority in writing as Department of Defense Safe Helpline staff.
A communication is "confidential" if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.
"Evidence of a victim's records or communications" means testimony of a victim advocate or Department of Defense Safe Helpline staff, or records that pertain to communications by a victim to a victim advocate or Department of Defense Safe Helpline staff, for the purposes of advising or providing assistance to the victim.
The privilege may be claimed by the victim or the guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a counsel representing the victim to claim the privilege on his or her behalf. The victim advocate or Department of Defense Safe Helpline staff who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, Department of Defense Safe Helpline staff, guardian, conservator, or a counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary.
There is no privilege under this rule:
when the victim is dead;
When federal law, state law, Department of Defense regulation, or service regulation imposes a duty to report information contained in a communication;
When a victim advocate or Department of Defense Safe Helpline staff believes that a victim's mental or emotional condition makes the victim a danger to any person, including the victim;
If the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate or Department of Defense Safe Helpline staff are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud;
when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or
when admission or disclosure of a communication is constitutionally required.
file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
serve the motion on the opposing party, the military judge and, if practicable, notify the victim or the victim's guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subdivision (e)(2).
Before ordering the production or admission of evidence of a victim's records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including victims' counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.
The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:
a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;
that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;
that the information sought is not merely cumulative of other information available; and
that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.
Any production or disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) above and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) above.
To prevent unnecessary disclosure of evidence of a victim's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.
The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.
Every person is competent to be a witness unless these rules provide otherwise.
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Mil. R. Evid. 703.
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
The presiding military judge may not testify as a witness at any proceeding of that court-martial. A party need not object to preserve the issue.
This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.
A member of a court-martial may not testify as a witness before the other members at any proceeding of that court-martial. If a member is called to testify, the military judge must - except in a special court-martial without a military judge - give the opposing party an opportunity to object outside the presence of the members.
During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member's or another member's vote; or any member's mental processes concerning the finding or sentence. The military judge may not receive a member's affidavit or evidence of a member's statement on these matters.
A member may testify about whether:
extraneous prejudicial information was improperly brought to the members' attention;
unlawful command influence or any other outside influence was improperly brought to bear on any member; or
a mistake was made in entering the finding or sentence on the finding or sentence forms.
Any party, including the party that called the witness, may attack the witness's credibility.
A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
Except for a criminal conviction under Mil. R. Evid. 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
the witness; or
another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.
Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.
The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:
must be admitted, subject to Mil. R. Evid. 403, in a court-martial in which the witness is not the accused; and
must be admitted in a court-martial in which the witness is the accused, if the probative value of the evidence outweighs its prejudicial effect to that accused; and
For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement.
In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
Subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Evidence of a conviction is not admissible if:
the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death, dishonorable discharge, or imprisonment for more than one year; or
the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
Evidence of a juvenile adjudication is admissible under this rule only if:
the adjudication was of a witness other than the accused;
an adult's conviction for that offense would be admissible to attack the adult's credibility; and
admitting the evidence is necessary to fairly determine guilt or innocence.
A conviction that satisfies this rule is admissible even if an appeal is pending, except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed under Article 64 or Article 66, if applicable. Evidence of the pendency is also admissible.
For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been adjudged.
Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.
The military judge should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
make those procedures effective for determining the truth;
avoid wasting time; and
protect witnesses from harassment or undue embarrassment.
Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The military judge may allow inquiry into additional matters as if on direct examination.
Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the military judge should allow leading questions:
on cross-examination; and
when a party calls a hostile witness or a witness identified with an adverse party.
As used in this rule:
"Child" means a person who is under the age of 16 at the time of his or her testimony.
"Abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.
"Exploitation" means child pornography or child prostitution.
"Negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to endanger seriously the physical health of the child.
"Domestic violence" means an offense that has as an element the use, or attempted or threatened use of physical force against a person by a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.
that it is necessary to protect the welfare of the particular child witness;
that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and
that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.
Remote live testimony of a child will not be used when the accused elects to absent himself from the courtroom in accordance with R.C.M. 804(d).
In making a determination under subdivision (d)(3), the military judge may question the child in chambers, or at some comfortable place other than the courtroom, on the record for a reasonable period of time, in the presence of the child, a representative of the prosecution, a representative of the defense, and the child's attorney or guardian ad litem.
This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
while testifying; or
before testifying, if the military judge decides that justice requires the party to have those options.
If a writing is not produced or is not delivered as ordered, the military judge may issue any appropriate order. If the prosecution does not comply, the military judge must strike the witness's testimony or - if justice so requires - declare a mistrial.
This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.
When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. The party must, on request, show it or disclose its contents to an adverse party's attorney.
Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. Subdivision (b) does not apply to an opposing party's statement under Mil R. Evid. 801(d)(2).
The military judge may - sua sponte or at the request of the members or the suggestion of a party - call a witness. Each party is entitled to cross-examine the witness. When the members wish to call or recall a witness, the military judge must determine whether the testimony would be relevant and not barred by any rule or provision of this Manual.
The military judge or members may examine a witness regardless of who calls the witness. Members must submit their questions to the military judge in writing. Following the opportunity for review by both parties, the military judge must rule on the propriety of the questions, and ask the questions in an acceptable form on behalf of the members. When the military judge or the members call a witness who has not previously testified, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.
Objections to the calling of witnesses by the military judge or
the members or to the interrogation by the military judge or the members
may be made at the time or at the next available opportunity when the members
are not present.
At a party's request, the military judge must order witnesses excluded so that they cannot hear other witnesses' testimony, or the military judge may do so sua sponte. This rule does not authorize excluding:
the accused;
a member of an Armed service or an employee of the United States after being designated as a representative of the United States by the trial counsel;
a person whose presence a party shows to be essential to presenting the party's case;
a person authorized by statute to be present; or
A victim of an offense from the trial of an accused for that offense, unless the military judge, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that hearing or proceeding.
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
rationally based on the witness's perception;
helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
not based on scientific, technical, or other specialized knowledge within the scope of Mil. R. Evid. 702.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the members of a court-martial only if the military judge finds that their probative value in helping the members evaluate the opinion substantially outweighs their prejudicial effect.
An opinion is not objectionable just because it embraces an ultimate issue.
Unless the military judge orders otherwise, an expert may state an opinion - and give the reasons for it - without first testifying to the underlying facts or data. The expert may be required to disclose those facts or data on cross-examination.
The trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain expert witnesses under Article 46 and R.C.M. 703.
The compensation of expert witnesses is governed by R.C.M. 703.
This rule does not limit an accused in calling any expert at the accused's own expense.
Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner's opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.
This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.
"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
"Declarant" means the person who made the statement.
"Hearsay" means a statement that:
the declarant does not make while testifying at the current trial or hearing; and
a party offers in evidence to prove the truth of the matter asserted in the statement.
A statement that meets the following conditions is not hearsay:
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
identifies a person as someone the declarant perceived earlier.
The statement is offered against an opposing party and:
was made by the party in an individual or representative capacity;
is one the party manifested that it adopted or believed to be true;
was made by a person whom the party authorized to make a statement on the subject;
was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
was made by the party's co-conspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Hearsay is not admissible unless any of the following provides otherwise:
a federal statute applicable in trial by courts-martial; or
these rules.
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
A statement that -
is made for - and is reasonably pertinent to - medical diagnosis or treatment; and
describes medical history; past or present symptoms or sensations; their inception; or their general cause.
A record that:
is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
was made or adopted by the witness when the matter was fresh in the witness's memory; and
accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
A record of an act, event, condition, opinion, or diagnosis if:
the record was made at or near the time by - or from information transmitted by - someone with knowledge;
the record was kept in the course of a regularly conducted activity of a uniformed service, business, institution, association, profession, organization, occupation, or calling of any kind, whether or not conducted for profit;
making the record was a regular practice of that activity;
all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Mil. R. Evid. 902(11) or with a statute permitting certification in a criminal proceeding in a court of the United States; and
neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. Records of regularly conducted activities include, but are not limited to, enlistment papers, physical examination papers, fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.
Evidence that a matter is not included in a record described in paragraph (6) if:
the evidence is admitted to prove that the matter did not occur or exist;
a record was regularly kept for a matter of that kind; and
neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
A record or statement of a public office if:
the office's activities;
a matter observed while under a legal duty to report, but not including a matter observed by law-enforcement personnel and other personnel acting in a law enforcement capacity; or
against the government, factual findings from a legally authorized investigation; and
Notwithstanding subdivision (8)(A)(ii), the following are admissible as a record of a fact or event if made by a person within the scope of the person's official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical examination papers, fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, court-martial conviction records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.
A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
Testimony - or a certification under Mil. R. Evid. 902 - that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
the record or statement does not exist; or
a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
A statement of fact contained in a certificate:
made by a person who is authorized by a religious organization or by law to perform the act certified;
attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
purporting to have been issued at the time of the act or within a reasonable time after it.
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
The record of a document that purports to establish or affect an interest in property if:
the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
the record is kept in a public office; and
a statute authorizes recording documents of that kind in that office.
A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
A statement in a document that is at least 20 years old and whose authenticity is established.
Market quotations, lists (including government price lists), directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
A statement contained in a treatise, periodical, or pamphlet if:
the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
A reputation among a person's family by blood, adoption, or marriage - or among a person's associates or in the community - concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history, age, ancestry, or other similar fact of the person's
personal or family history.
A reputation in a community - arising before the controversy - concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, State, or nation.
A reputation among a person's associates or in the community concerning the person's character.
Evidence of a final judgment of conviction if:
the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
the conviction was for a crime punishable by death, dishonorable discharge, or by imprisonment for more than a year;
the evidence is admitted to prove any fact essential to the judgment; and
when offered by the prosecution for a purpose other than impeachment, the judgment was against the accused.
The pendency of an appeal may be shown but does not affect admissibility. In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment for more than one year, the maximum punishment prescribed by the President under Article 56 of the Uniform of Military Justice at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
was essential to the judgment; and
could be proved by evidence of reputation.
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception or exclusion to the rule.
When a hearsay statement - or a statement described in Mil. R. Evid. 801(d)(2)(C), (D), or (E) - has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The military judge may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Mil. R. Evid. 803 or 804:
the statement has equivalent circumstantial guarantees of trustworthiness;
it is offered as evidence of a material fact;
it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
admitting it will best serve the purposes of these rules and the interests of justice.
The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
The following are examples only - not a complete list - of evidence that satisfies the requirement:
Testimony that an item is what it is claimed to be.
A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
A comparison with an authenticated specimen by an expert witness or the trier of fact.
The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
An opinion identifying a person's voice - whether heard firsthand or through mechanical or electronic transmission or recording - based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
For a telephone conversation, evidence that a call was made to the number assigned at the time to:
a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
Evidence that:
a document was recorded or filed in a public office as authorized by law; or
a purported public record or statement is from the office where items of this kind are kept.
For a document or data compilation, evidence that it:
is in a condition that creates no suspicion about its authenticity;
was in a place where, if authentic, it would likely be; and
is at least 20 years old when offered.
Evidence describing a process or system and showing that it produces an accurate result.
Any method of authentication or identification allowed by a federal statute, a rule prescribed by the Supreme Court, or an applicable regulation prescribed pursuant to statutory authority.
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
A document that bears:
a seal purporting to be that of the United States; any State, district, Commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
a signature purporting to be an execution or attestation.
A document that bears no seal if:
it bears the signature of an officer or employee of an entity named in subdivision (1)(A) above; and
another public officer who has a seal and official duties within that same entity certifies under seal - or its equivalent - that the signer has the official capacity and that the signature is genuine.
A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester - or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the military judge may, for good cause, either:
order that it be treated as presumptively authentic without final certification; or
allow it to be evidenced by an attested summary with or without final certification.
A copy of an official record - or a copy of a document that was recorded or filed in a public office as authorized by law - if the copy is certified as correct by:
the custodian or another person authorized to make the certification; or
a certificate that complies with subdivision (1), (2), or (3) above, a federal statute, a rule prescribed by the Supreme Court, or an applicable regulation prescribed pursuant to statutory authority.
Documents or records kept under the authority of the United States by any department, bureau, agency, office, or court thereof when attached to or accompanied by an attesting certificate of the custodian of the document or record without further authentication.
A book, pamphlet, or other publication purporting to be issued by a public authority.
Printed material purporting to be a newspaper or periodical.
An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.
A signature, document, or anything else that a federal statute, or an applicable regulation prescribed pursuant to statutory authority, declares to be presumptively or prima facie genuine or authentic.
The original or a copy of a domestic record that meets the requirements of Mil. R. Evid. 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, or at a later time that the military judge allows for good cause, the proponent must give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection so that the party has a fair opportunity to challenge them.
A subscribing witness's testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.
In this section:
A "writing" consists of letters, words, numbers, or their equivalent set down in any form.
A "recording" consists of letters, words, numbers, or their equivalent recorded in any manner.
A "photograph" means a photographic image or its equivalent stored in any form.
An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout or other output readable by sight if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.
A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
An original writing, recording, or photograph is required in order to prove its content unless these rules, this Manual, or a federal statute provides otherwise.
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
all the originals are lost or destroyed, and not by the proponent acting in bad faith;
an original cannot be obtained by any available judicial process;
the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
the writing, recording, or photograph is not closely related to a controlling issue.
The proponent may use a copy to prove the content of an official record - or of a document that was recorded or filed in a public office as authorized by law - if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Mil. R. Evid. 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time or place. The military judge may order the proponent to produce them in court.
The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
Ordinarily, the military judge determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Mil. R. Evid. 1004 or 1005. When a court-martial is composed of a military judge and members, the members determine - in accordance with Mil. R. Evid. 104(b) - any issue about whether:
an asserted writing, recording, or photograph ever existed;
another one produced at the trial or hearing is the original; or
other evidence of content accurately reflects the content.
Except as otherwise provided in this Manual, these rules apply generally to all courts-martial, including summary courts-martial, Article 39(a) sessions, limited factfinding proceedings ordered on review, proceedings in revision, and contempt proceedings other than contempt proceedings in which the judge may act summarily.
The application of these rules may be relaxed in presentencing proceedings as provided under R.C.M. 1001 and otherwise as provided in this Manual.
The rules on privilege apply at all stages of a case or proceeding.
These rules - except for Mil. R. Evid. 412 and those on privilege - do not apply to the following:
the military judge's determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
pretrial investigations under Article 32;
proceedings for vacation of suspension of sentence under Article 72; and
miscellaneous actions and proceedings related to search authorizations, pretrial restraint, pretrial confinement, or other proceedings authorized under the Uniform Code of Military Justice or this Manual that are not listed in subdivision (a).
Amendments to the Federal Rules of Evidence - other than Articles III and V - will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.
The President has determined that the following Federal Rules of Evidence do not apply to the Military Rules of Evidence: Rules 301, 302, 415, and 902(12).
These rules may be cited as the Military Rules of Evidence.
(Statutory text of each Article is in bold)
[Note: To state an offense under Article 134, practitioners should expressly allege at least one of the three terminal elements, i.e., that the alleged conduct was: prejudicial to good order and discipline; service discrediting; or a crime or offense not capital. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). See also paragraph 60c(6)(a) in this part and R.C.M. 307(c)(3).]
[Note: In 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser included offenses. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). An offense under Article 79 is "necessarily included" in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. See discussion following paragraph 3b(1)(c) in this part and the related analysis in Appendix 23 of this Manual.]
Part IV of the Manual addresses the punitive articles, 10 U.S.C. §§ 877-934. Part IV is organized by paragraph beginning with Article 77; therefore, each paragraph number is associated with an article. For example, paragraph 45 addresses Article 120, Rape and sexual assault generally. Article 77, Principals, and Article 79, Lesser included offenses, are located in the punitive article subchapter of Title 10 but are not chargeable offenses as such.
Other than Articles 77 and 79, the punitive articles of the code are discussed using the following sequence:
Text of the article
Elements of the offense or offenses
Explanation
Lesser included offenses
Maximum punishment
Sample specifications
Lesser included offenses are established in subparagraph d of each paragraph of Part IV and are defined and explained under Article 79. Practitioners are advised, however, to read and comply with United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). See note above.
Sample specifications are provided in subparagraph f of each paragraph in Part IV and are meant to serve as a guide. The specifications may be varied in form and content as necessary. R.C.M. 307 prescribes rules for preferral of charges and for drafting specifications. The discussion under that rule explains how to allege violations under the code using the format of charge and specification; however, practitioners are advised to read and comply with United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). See two notes above and R.C.M. 307(c)(3).
The term "elements," as used in Part IV, includes both the statutory elements of the offense and any aggravating factors listed under the President's authority which increases the maximum permissible punishment when specified aggravating factors are pleaded and proven.
The prescriptions of maximum punishments in subparagraph e of each paragraph of Part IV must be read in conjunction with R.C.M. 1003, which prescribes additional punishments that may be available and additional limitations on punishments.
Any person punishable under this chapter who-
counsels, commands, or procures its commission; or**
be punishable by this chapter; is a principal.**
Article 77 does not define an offense. Its purpose is to make clear
that a person need not personally perform the acts necessary to constitute
an offense to be guilty of it. A person who aids, abets, counsels, commands,
or procures the commission of an offense, or who causes an act to be done
which, if done by that person directly, would be an offense is equally guilty
of the offense as one who commits it directly, and may be punished to the
same extent.
Article 77 eliminates the common law distinctions
between principal in the first degree ("perpetrator"); principal
in the second degree (one who aids, counsels, commands, or encourages the
commission of an offense and who is present at the scene of the crime-commonly
known as an "aider and abettor"); and accessory before the fact
(one who aids, counsels, commands, or encourages the commission of an offense
and who is not present at the scene of the crime). All of these are now "principals."
A perpetrator is one who actually commits the offense, either by
the perpetrator's own hand, or by causing an offense to be committed by
knowingly or intentionally inducing or setting in motion acts by an animate
or inanimate agency or instrumentality which result in the commission of
an offense. For example, a person who knowingly conceals contraband drugs
in an automobile, and then induces another person, who is unaware and has
no reason to know of the presence of drugs, to drive the automobile onto
a military installation, is, although not present in the automobile, guilty
of wrongful introduction of drugs onto a military installation. (On these
facts, the driver would be guilty of no crime.) Similarly, if, upon orders
of a superior, a soldier shot a person who appeared to the soldier to be
an enemy, but was known to the superior as a friend, the superior would
be guilty of murder (but the soldier would be guilty of no offense).
If one is not a perpetrator, to be guilty of an offense committed
by the perpetrator, the person must:
another to commit, or assist, encourage, advise, counsel, or command another
in the commission of the offense; and
One who,
without knowledge of the criminal venture or plan, unwittingly encourages
or renders assistance to another in the commission of an offense is not guilty
of a crime. See the parentheticals in the examples in paragraph
1b(2)(a) above. In some circumstances, inaction may make one liable as a
party, where there is a duty to act. If a person (for example, a security
guard) has a duty to interfere in the commission of an offense, but does
not interfere, that person is a party to the crime if such
a noninterference is intended to and does operate as an aid or encouragement
to the actual perpetrator.
Presence at the scene of the crime is not necessary to make one
a party to the crime and liable as a principal. For example, one who, knowing
that a person intends to shoot another person and intending that such an assault
be carried out, provides the person with a pistol, is guilty of assault when
the offense is committed, even though not present at the scene.
Mere presence at the scene of a crime does not make one a principal
unless the requirements of paragraph 1b(2)(a) or (b) have been met.
When an offense charged requires proof of a specific intent or
particular state of mind as an element, the evidence must prove that the
accused had that intent or state of mind, whether the accused is charged
as a perpetrator or an "other party" to crime. It is possible
for a party to have a state of mind more or less culpable than the perpetrator
of the offense. In such a case, the party may be guilty of a more or less
serious offense than that committed by the perpetrator. For example, when
a homicide is committed, the perpetrator may act in the heat of sudden passion
caused by adequate provocation and be guilty of manslaughter, while the
party who, without such passion, hands the perpetrator a weapon and encourages
the perpetrator to kill the victim, would be guilty of murder. On the other
hand, if a party assists a perpetrator in an assault on a person who, known
only to the perpetrator, is an officer, the party would be guilty only of
assault, while the perpetrator would be guilty of assault on an officer.
A principal may be convicted of crimes committed by another principal
if such crimes are likely to result as a natural and probable consequence
of the criminal venture or design. For example, the accused who is a party
to a burglary is guilty as a principal not only of the offense of burglary,
but also, if the perpetrator kills an occupant in the course of the burglary,
of murder. (See also paragraph 5 concerning liability for
offenses committed by co-conspirators.)
One may be a principal, even if the perpetrator is not identified
or prosecuted, or is acquitted.
A person may withdraw from a common venture or design and avoid
liability for any offenses committed after the withdrawal. To be effective,
the withdrawal must meet the following requirements:
It must occur before the offense is committed;
The assistance, encouragement, advice, instigation, counsel, command,
or procurement given by the person must be effectively countermanded or
negated; and
or to appropriate law enforcement authorities in time for the perpetrators
to abandon the plan or for law enforcement authorities to prevent the offense.
**Any person subject to this chapter who, knowing that an
offense punishable by this chapter has been committed, receives, comforts,
or assists the offender in order to hinder or prevent his apprehension, trial,
or punishment shall be punished as a court-martial may direct.**
person;
That the accused knew that this person had committed such offense;
That thereafter the accused received, comforted, or assisted the
offender; and
the apprehension, trial, or punishment of the offender.
The assistance given a principal by an accessory after the fact
is not limited to assistance designed to effect the escape or concealment
of the principal, but also includes acts performed to conceal the commission
of the offense by the principal (for example, by concealing evidence of the
offense).
The mere failure to report a known offense will not make one an
accessory after the fact. Such failure may violate a general order or regulation,
however, and thus constitute an offense under Article 92. See paragraph
constitute the offense of misprision of a serious offense, under Article
The term "offense punishable by this chapter" in the
text of the article means any offense described in the code.
The principal who committed the offense in question need not be
subject to the code, but the offense committed must be punishable by the
code.
The prosecution must prove that a principal committed the offense
to which the accused is allegedly an accessory after the fact. However,
evidence of the conviction or acquittal of the principal in a separate trial
is not admissible to show that the principal did or did not commit the offense.
Furthermore, an accused may be convicted as an accessory after the fact despite
the acquittal in a separate trial of the principal whom the accused allegedly
comforted, received, or assisted.
The offense of being an accessory after the fact is not a lesser
included offense of the primary offense.
Actual knowledge is required but may be proved by circumstantial
evidence.
See paragraph 3 of this part and Appendix 12A.
Any person subject to the code who is found guilty as an accessory
after the fact to an offense punishable by the code shall be subject to
the maximum punishment authorized for the principal offense, except that
in no case shall the death penalty nor more than one-half of the maximum
confinement authorized for that offense be adjudged, nor shall the period
of confinement exceed 10 years in any case, including offenses for which
life imprisonment may be adjudged.
In that (personal jurisdiction data),
knowing that (at/on board-location), on or about 20 , had committed an offense punishable
by the Uniform Code of Military Justice, to wit: ,
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , in order
to (hinder) (prevent) the (apprehension) (trial) (punishment) of the said , (receive) (comfort) (assist) the said by .
**An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit either the offense
charged or an offense necessarily included therein.**
A lesser offense is "necessarily included" in a charged offense when the elements of the lesser offense are a subset of the elements of the charged offense, thereby putting the accused on notice to defend against the lesser offense in addition to the offense specifically charged. A lesser offense may be "necessarily included" when:
All of the elements of the lesser offense are included in the greater offense, and the common elements are identical (for example, larceny as a lesser included offense of robbery);
All of the elements of the lesser offense are included in the greater offense, but at least one element is a subset by being legally less serious (for example, housebreaking as a lesser included offense of burglary); or
All of the elements of the lesser offense are "included and necessary" parts of the greater offense, but the mental element is a subset by being legally less serious (for example, wrongful appropriation as a lesser included offense of larceny).
The "elements test" is the proper method for determining lesser included offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); Schmuck v. United States, 489 U.S. 705 (1989); Appendix 23 of this Manual, Art. 79. Paragraph 3.b.(1) was amended to comport with the elements test, which requires that the elements of the lesser offense must be a subset of the elements of the charged offense. The elements test does not require identical statutory language, and use of normal principles of statutory interpretation is permitted. The elements test is necessary to safeguard the due process requirement of notice to a criminal defendant.
A military judge must instruct panel members on lesser included offenses reasonably raised by the evidence.
When the offense charged is a compound offense comprising two or more lesser included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged. For example, robbery includes both larceny and assault. Therefore, in a proper case, a court-martial may find an accused not guilty of robbery, but guilty of wrongful appropriation and assault.
A court-martial may find an accused not guilty of the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, if necessary, substitute language appropriate to the lesser included offense. For example, the accused is charged with murder in violation of Article 118, but found guilty of voluntary manslaughter in violation of Article 119. Such a finding may be worded as follows:
Of the Specification: Guilty, except the word "murder" substituting therefor the words "willfully and unlawfully kill," of the excepted word, not guilty, of the substituted words, guilty.
Of the Charge: Not guilty, but guilty of a violation of Article 119.
If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a violation of the specific punitive article violated and not a violation of Article 79.
Specific lesser included offenses, if any, are listed for each offense in Appendix 12A, but the list is merely guidance to practitioners, is not all-inclusive, and is not binding on military courts.
Practitioners must consider lesser included offenses on a case-by-case basis. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010); discussion following paragraph 3.b.(1)(c) above. The lesser included offenses listed in Appendix 12A were amended in 2015 to comport with the elements test; however, practitioners must analyze each lesser included offense on a case-by-case basis. See Appendix 23 of this Manual, Art. 79.
chapter, amounting to more than mere preparation and tending, even though
failing, to effect its commission, is an attempt to commit that offense.**
punishable by this chapter shall be punished as a court-martial may direct,
unless otherwise specifically prescribed.**
to commit an offense although it appears on the trial that the offense was
consummated.**
That the accused did a certain overt act;
That the act was done with the specific intent to commit a certain
offense under the code;
That the act amounted to more than mere preparation; and
That the act apparently tended to effect the commission of the
intended offense.
To constitute an attempt there must be a specific intent to commit
the offense accompanied by an overt act which directly tends to accomplish
the unlawful purpose.
Preparation consists of devising or arranging the means or measures
necessary for the commission of the offense. The overt act required goes
beyond preparatory steps and is a direct movement toward the commission
of the offense. For example, a purchase of matches with the intent to burn
a haystack is not an attempt to commit arson, but it is an attempt to commit
arson to applying a burning match to a haystack, even if no fire results.
The overt act need not be the last act essential to the consummation of the
offense. For example, an accused could commit an overt act, and then voluntarily
decide not to go through with the intended offense. An attempt would nevertheless
have been committed, for the combination of a specific intent to commit
an offense, plus the commission of an overt act directly tending to accomplish
it, constitutes the offense of attempt. Failure to complete the offense,
whatever the cause, is not a defense.
A person who purposely engages in conduct which would constitute
the offense if the attendant circumstances were as that person believed
them to be is guilty of an attempt. For example, if A, without justification
or excuse and with intent to kill B, points a gun at B and pulls the trigger,
A is guilty of attempt to murder, even though, unknown to A, the gun is defective
and will not fire. Similarly, a person who reaches into the pocket of another
with the intent to steal that person's billfold is guilty of an attempt
to commit larceny, even though the pocket is empty.
It is a defense to an attempt offense that the person voluntarily
and completely abandoned the intended crime, solely because of the person's
own sense that it was wrong, prior to the completion of the crime. The
voluntary abandonment defense is not allowed if the abandonment results,
in whole or in part, from other reasons, for example, the person feared detection
or apprehension, decided to await a better opportunity for success, was
unable to complete the crime, or encountered unanticipated difficulties or
unexpected resistance. A person who is entitled to the defense of voluntary
abandonment may nonetheless be guilty of a lesser included, completed offense.
For example, a person who voluntarily abandoned an attempted armed robbery
may nonetheless be guilty of assault with a dangerous weapon.
Soliciting another to commit an offense does not constitute an
attempt. See paragraph 6 for a discussion of Article 82,
solicitation.
While most attempts should be charged under Article 80, the following
attempts are specifically addressed by some other article, and should be
charged accordingly:
Article 85-desertion
Article 94-mutiny or sedition.
Article 100-subordinate compelling
Article 104-aiding the enemy
Article 106a-espionage
Article 119a-attempting to kill an unborn child
Article 128-assault
An attempt to commit conduct which would violate a lawful general
order or regulation under Article 92 (see paragraph 16)
should be charged under Article 80. It is not necessary in such cases to
prove that the accused intended to violate the order or regulation, but it
must be proved that the accused intended to commit the prohibited conduct.
See paragraph 3 of this part and Appendix 12A.
Any person subject to the code who is found guilty of an attempt
under Article 80 to commit any offense punishable by the code shall be subject
to the same maximum punishment authorized for the commission of the offense
attempted, except that in no case shall the death penalty be adjudged, nor
shall any mandatory minimum punishment provisions apply; and in no case,
other than attempted murder, shall confinement exceeding 20 years be adjudged.
In that (personal jurisdiction data) did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
attempt to (describe offense with sufficient detail to include expressly
or by necessary implication every element).
Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.
That the accused entered into an agreement with one or more persons to commit an offense under the UCMJ; and
That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.
That the accused entered into an agreement with one or more persons to commit an offense under the law of war;
That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused knowingly performed an overt act for the purpose of bringing about the object of the conspiracy; and
That death resulted to one or more victims.
Two or more persons are required in order to have a conspiracy.
Knowledge of the identity of co-conspirators and their particular connection
with the criminal purpose need not be established. The accused must be subject
to the code, but the other co-conspirators need not be. A person may be guilty
of conspiracy although incapable of committing the intended offense. For
example, a bedridden conspirator may knowingly furnish the car to be used
in a robbery. The joining of another conspirator after the conspiracy has
been established does not create a new conspiracy or affect the status of
the other conspirators. However, the conspirator who joined an existing
conspiracy can be convicted of this offense only if, at or after the time
of joining the conspiracy, an overt act in furtherance of the object of the
agreement is committed.
The agreement in a conspiracy need not be in any particular form
or manifested in any formal words. It is sufficient if the minds of the
parties arrive at a common understanding to accomplish the object of the
conspiracy, and this may be shown by the conduct of the parties. The agreement
need not state the means by which the conspiracy is to be accomplished or
what part each conspirator is to play.
The object of the agreement must, at least in part, involve the
commission of one or more offenses under the code. An agreement to commit
several offenses is ordinarily but a single conspiracy. Some offenses require
two or more culpable actors acting in concert. There can be no conspiracy
where the agreement exists only between the persons necessary to commit such
an offense. Examples include dueling, bigamy, incest, adultery, and bribery.
offense; must take place at the time of or after the agreement; must be
done by one or more of the conspirators, but not necessarily the accused;
and must be done to effectuate the object of the agreement.
manifestation that the agreement is being executed. Although committing the
intended offense may constitute the overt act, it is not essential that
the object offense be committed. Any overt act is enough, no matter how preliminary
or preparatory in nature, as long as it is a manifestation that the agreement
is being executed.
new agreement specifically directed to that act and each conspirator is
equally guilty even though each does not participate in, or have knowledge
of, all of the details of the execution of the conspiracy.
Each conspirator is liable for all offenses committed pursuant to
the conspiracy by any of the co-conspirators while the conspiracy continues
and the person remains a party to it.
A party to the conspiracy who abandons or withdraws from the agreement
to commit the offense before the commission of an overt act by any conspirator
is not guilty of conspiracy. An effective withdrawal or abandonment must
consist of affirmative conduct which is wholly inconsistent with adherence
to the unlawful agreement and which shows that the party has severed all
connection with the conspiracy. A conspirator who effectively abandons or
withdraws from the conspiracy after the performance of an overt act by one
of the conspirators remains guilty of conspiracy and of any offenses committed
pursuant to the conspiracy up to the time of the abandonment or withdrawal.
However, a person who has abandoned or withdrawn from the conspiracy is
not liable for offenses committed thereafter by the remaining conspirators.
The withdrawal of a conspirator from the conspiracy does not affect the
status of the remaining members.
It is not a defense that the means adopted by the conspirators to
achieve their object, if apparently adapted to that end, were actually not
capable of success, or that the conspirators were not physically able to
accomplish their intended object.
A conspiracy to commit an offense is a separate and distinct offense
from the offense which is the object of the conspiracy, and both the conspiracy
and the consummated offense which was its object may be charged, tried,
and punished. The commission of the intended offense may also constitute
the overt act which is an element of the conspiracy to commit that offense.
The United States Code prohibits conspiracies to commit certain
specific offenses which do not require an overt act. These conspiracies
should be charged under Article 134. Examples include conspiracies to impede
or injure any Federal officer in the discharge of duties under 18 U.S.C.
§ 372, conspiracies against civil rights under 18 U.S.C. § 241,
and certain drug conspiracies under 21 U.S.C. § 846. See paragraph
60c(4)(c)(ii).
See paragraph 3 of this part and Appendix 12A.
Any person subject to the code who is found guilty of conspiracy shall be subject to the maximum punishment authorized for the offense which is the object of the conspiracy. However, with the exception noted below, if death is an authorized punishment for the offense which is the object of the conspiracy, the maximum punishment shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. If the offense which is the object of the conspiracy is an offense under the law of war, the person knowingly performed an overt act for the purpose of bringing about the object of the conspiracy, and death results to one or more victims, the death penalty shall be an available punishment.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
conspire with (and ) to
commit an offense under the Uniform Code of Military Justice, to wit: (larceny
of , of a value of (about) $ ,
the property of ), and in order to effect the object
of the conspiracy the said (and ) did .
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
conspire with (and ) to
commit an offense under the law of war, to wit: (murder
of ), and in order to effect the object of the conspiracy the said
knowingly did ) resulting in the death of
.
or other to desert in violation of section 885 of this title (Article 85)
or mutiny in violation of section 894 of this title (Article 94) shall,
if the offense solicited or advised is attempted or committed, be punished
with the punishment provided for the commission of the offense, but, if the
offense solicited or advised is not committed or attempted, he shall be
punished as a court-martial may direct.**
or others to commit an act of misbehavior before the enemy in violation
of section 899 of this title (Article 99) or sedition in violation of section
894 of this title (Article 94) shall, if the offense solicited or advised
is committed, be punished with the punishment provided for the commission
of the offense, but, if the offense solicited or advised is not committed,
he shall be punished as a court-martial may direct.**
to commit any of the four offenses named in Article 82; and
be committed.
[Note: If the offense solicited or advised was attempted or
committed, add the following element]
as the proximate result of the solicitation.
The offense is complete when a solicitation is made or advice is
given with the specific wrongful intent to influence another or others to
commit any of the four offenses named in Article 82. It is not necessary
that the person or persons solicited or advised agree to or act upon the
solicitation or advice.
Solicitation may be by means other than word of mouth or writing.
Any act or conduct which reasonably may be construed as a serious request
or advice to commit one of the four offenses named in Article 82 may constitute
solicitation. It is not necessary that the accused act alone in the solicitation
or in the advising; the accused may act through other persons in committing
this offense.
Solicitation to commit offenses other than violations of the four
offenses named in Article 82 may be charged as violations of Article 134. _
See_ paragraph 105. However, some offenses require, as an element
of proof, some act of solicitation by the accused. These offenses are separate
and distinct from solicitations under Articles 82 and 134. When the accused's
act of solicitation constitutes, by itself, a separate offense, the accused
should be charged with that separate, distinct offense-for example,
pandering (see paragraph 97) and obstruction of justice
(see paragraph 96) in violation of Article 134.
See paragraph 3 of this part and Appendix 12A.
If the offense solicited or advised is committed or (in the case
of soliciting desertion or mutiny) attempted, then the accused shall be
punished with the punishment provided for the commission of the offense
solicited or advised. If the offense solicited or advised is not committed
or (in the case of soliciting desertion or mutiny) attempted, then the following
punishment may be imposed:
allowances, and confinement for 3 years.
allowances, and confinement for 10 years.
discharge, forfeiture of all pay and allowances, and confinement for 10
years.
of all pay and allowances, and confinement for 10 years.
In that (personal jurisdiction
data), did, (at/on board-location),
on or about 20 , (a time of war) by (here state the manner and form of
solicitation or advice), (solicit) (advise) (and ) to (desert in violation of Article 85) (mutiny in violation
of Article 94)
[*and, as a result of such (solicitation) (advice), the offense
(solicited) (advised) was, on or about , 20
, (at/on board-location), (attempted) (committed)
by (and )].
[*Note: This language should be added to the end of the specification if the
offense solicited or advised is actually committed.]
or sedition (Article 94).
In that (personal jurisdiction
data) did, (at/on board-location),
on or about 20, (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise),
(and ) to commit (an act of misbehavior before the
enemy in violation of Article 99) (sedition in violation of Article 94)
[*and, as a result of such (solicitation) (advice), the offense
(solicited) (advised) was, on or about 20 , (at/on board-location), committed by (and )].
[*Note: This language should be added to the end of the specification if the
offense solicited or advised is actually committed.]
Any person who-
knowingly false representation or deliberate concealment as to his qualifications
for that enlistment or appointment and receives pay or allowances thereunder;
or**
representation or deliberate concealment as to his eligibility for that
separation;
shall be punished as a court-martial may direct.**
That the accused was enlisted or appointed in an armed force;
That the accused knowingly misrepresented or deliberately concealed
a certain material fact or facts regarding qualifications of the accused
for enlistment or appointment;
by that knowingly false representation or deliberate concealment; and
pay or allowances or both.
That the accused was separated from an armed force;
That the accused knowingly misrepresented or deliberately concealed
a certain material fact or facts about the accused's eligibility for separation;
and
knowingly false representation or deliberate concealment.
A fraudulent enlistment, appointment, or separation is one procured
by either a knowingly false representation as to any of the qualifications
prescribed by law, regulation, or orders for the specific enlistment, appointment,
or separation, or a deliberate concealment as to any of those disqualifications.
Matters that may be material to an enlistment, appointment, or separation
include any information used by the recruiting, appointing, or separating
officer in reaching a decision as to enlistment, appointment, or separation
in any particular case, and any information that normally would have been
so considered had it been provided to that officer.
A member of the armed forces who enlists or accepts an appointment
without being regularly separated from a prior enlistment or appointment
should be charged under Article 83 only if that member has received pay
or allowances under the fraudulent enlistment or appointment. Acceptance of
food, clothing, shelter, or transportation from the government constitutes
receipt of allowances. However, whatever is furnished the accused while in
custody, confinement, arrest, or other restraint pending trial for fraudulent
enlistment or appointment is not considered an allowance. The receipt of
pay or allowances may be proved by circumstantial evidence.
One who procures one's own enlistment, appointment, or separation
by several misrepresentations or concealment as to qualifications for the
one enlistment, appointment, or separation so procured, commits only one
offense under Article 83.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , by means of (knowingly false representations that (here
state the fact or facts material to qualification for enlistment or appointment
which were represented), when in fact (here state the true fact of facts))
(deliberate concealment of the fact that (here state the fact or facts disqualifying
the accused for enlistment or appointment which were concealed)), procure
himself/herself to be (enlisted as a ) (appointed
as a ) in the (here state the armed force in which
the accused procured the enlistment or appointment), and did thereafter,
(at/on board-location), receive (pay) (allowances) (pay and allowances)
under the enlistment) (appointment) so procured.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , by means of (knowingly false representations that (here
state the fact or facts material to eligibility for separation which were
represented), when in fact (here state the true fact or facts)) (deliberate
concealment of the fact that (here state the fact or facts concealed which
made the accused ineligible for separation)), procure himself/herself to
be separated from the (here state the armed force from which the accused
procured his/her separation).
**Any person subject to this chapter who effects an
enlistment or appointment in or a separation from the armed forces of any
person who is known to him to be ineligible for that enlistment, appointment,
or separation because it is prohibited by law, regulation, or order shall
be punished as a court-martial may direct.**
of the person named;
or separation because it was prohibited by law, regulation, or order; and
appointment, or separation.
It must be proved that the enlistment, appointment, or separation
was prohibited by law, regulation, or order when effected and that the accused
then knew that the person enlisted, appointed, or separated was ineligible
for the enlistment, appointment, or separation.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , effect (the (enlistment) (appointment) of as a in (here state the armed force in
which the person was enlisted or appointed)) (the separation of from (here state the armed force from which the person was separated)),
then well knowing that the said was ineligible for
such (enlistment) (appointment) (separation) because (here state facts whereby
the enlistment, appointment, or separation was prohibited by law, regulation,
or order).
or place of duty with intent to remain away therefrom permanently;**
hazardous duty or to shirk important service; or**
enlists or accepts an appointment in the same or another one of the armed
forces without fully disclosing the fact that he has not been regularly
separated, or enters any foreign armed service except when authorized by
the United States; is guilty of desertion.**
before notice of its acceptance, quits his post or proper duties without leave and with intent to
remain away therefrom permanently is guilty of desertion.
**
committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
**
[Note: Paragraph 9a(a)(3) above has been held not to
state a separate offense by the United States Court of
Military Appeals in United States v. Huff, 22 C.M.R.
37 (1956)]
organization, or place of duty;
That such absence was without authority;
That the accused, at the time the absence began or at some time
during the absence, intended to remain away from his or her unit, organization,
or place of duty permanently; and
[Note: If the absence was terminated by apprehension, add
the following element]
service.
of duty;
or shirk a certain service;
That the duty to be performed was hazardous or the service important;
That the accused knew that he or she would be required for such
duty or service; and
the United States, and had tendered his or her resignation;
resignation, the accused quit his or her post or proper duties;
from his or her post or proper duties; and
[Note: If the absence was terminated by apprehension, add the
following element]
That the accused did a certain overt act;
That the act was done with the specific intent to desert;
That the act amounted to more than mere preparation; and
That the act apparently tended to effect the commission of the
offense of desertion.
Desertion with intent to remain away permanently is complete when
the person absents himself or herself without authority from his or her
unit, organization, or place of duty, with the intent to remain away therefrom
permanently. A prompt repentance and return, while material in extenuation,
is no defense. It is not necessary that the person be absent entirely from
military jurisdiction and control.
or place of duty may be formed any time during the unauthorized absence.
The intent need not exist throughout the absence, or for any particular
period of time, as long as it exists at some time during the absence.
unit, organization, or place of duty. When the accused had such an intent,
it is no defense that the accused also intended to report for duty elsewhere,
or to enlist or accept an appointment in the same or a different armed force.
evidence. Among the circumstances from which an inference may be drawn that
an accused intended to remain absent permanently are: that the period of absence
was lengthy; that the accused attempted to, or did, dispose of uniforms
or other military property; that the accused purchased a ticket for a distant
point or was arrested, apprehended, or surrendered a considerable distance
from the accused's station; that the accused could have conveniently surrendered
to military control but did not; that the accused was dissatisfied with the
accused's unit, ship, or with military service; that the accused made remarks
indicating an intention to desert; that the accused was under charges or
had escaped from confinement at the time of the absence; that the accused
made preparations indicative of an intent not to return (for example, financial
arrangements); or that the accused enlisted or accepted an appointment in
the same or another armed force without disclosing the fact that the accused
had not been regularly separated, or entered any foreign armed service without
being authorized by the United States. On the other hand, the following
are included in the circumstances which may tend to negate an inference
that the accused intended to remain away permanently: previous long and excellent
service; that the accused left valuable personal property in the unit or
on the ship; or that the accused was under the influence of alcohol or drugs
during the absence. These lists are illustrative only.
which administratively refer to an accused as a "deserter" are
not evidence of intent to desert.
of extended duration, does not, without more, prove guilt of desertion.
force.
Article 85a(3) does not state a separate offense. Rather, it is
a rule of evidence by which the prosecution may prove intent to remain away
permanently. Proof of an enlistment or acceptance of an appointment in a
service without disclosing a preexisting duty status in the same or a different
service provides the basis from which an inference of intent to permanently
remain away from the earlier unit, organization, or place of duty may be
drawn. Furthermore, if a person, without being regularly separated from
one of the armed forces, enlists or accepts an appointment in the same or
another armed force, the person's presence in the military service under
such an enlistment or appointment is not a return to military control and
does not terminate any desertion or absence without authority from the earlier
unit or organization, unless the facts of the earlier period of service are
known to military authorities. If a person, while in desertion, enlists or
accepts an appointment in the same or another armed force, and deserts while
serving the enlistment or appointment, the person may be tried and convicted
for each desertion.
hazardous duty or to shirk important service.
"Hazardous duty" or "important service"
may include service such as duty in a combat or other dangerous area; embarkation
for certain foreign or sea duty; movement to a port of embarkation for that
purpose; entrainment for duty on the border or coast in time of war or threatened
invasion or other disturbances; strike or riot duty; or employment in aid
of the civil power in, for example, protecting property, or quelling or preventing
disorder in times of great public disaster. Such services as drill, target
practice, maneuvers, and practice marches are not ordinarily "hazardous
duty or important service." Whether a duty is hazardous or a service
is important depends upon the circumstances of the particular case, and is
a question of fact for the court-martial to decide.
"Quits" in Article 85 means "goes absent without
authority."
Article 85 a(2) requires proof that the accused
actually knew of the hazardous duty or important service. Actual knowledge
may be proved by circumstantial evidence.
Once the attempt is made, the fact that the person desists, voluntarily
or otherwise, does not cancel the offense. The offense is complete, for example,
if the person, intending to desert, hides in an empty freight car on a military
reservation, intending to escape by being taken away in the car. Entering
the car with the intent to desert is the overt act. For a more detailed
discussion of attempts, see paragraph 4. For an explanation
concerning intent to remain away permanently, see paragraph
9c(1)(c).
A prisoner whose dismissal or dishonorable or bad-conduct discharge
has been executed is not a "member of the armed forces" within
the meaning of Articles 85 or 86, although the prisoner may still be subject
to military law under Article 2(a)(7). If the facts warrant,
such a prisoner could be charged with escape from confinement under Article
95 or an offense under Article 134.
See paragraph 3 of this part and Appendix 12A.
or to shirk important service.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Death or such other punishment as a court-martial may direct.
In that (personal jurisdiction
data), did, on or about 20 ,
(a time of war) without authority and with intent to remain away therefrom
permanently, absent himself/herself from his/her (unit) (organization) (place
of duty), to wit: , located at ( ),
and did remain so absent in desertion until (he/she was apprehended) on or
about 20 .
In that (personal jurisdiction
data), did, on or about 20 ,
(a time of war) with intent to (avoid hazardous duty) (shirk important service),
namely: , quit his/her (unit) (organization) (place
of duty), to wit: , located at ( ),
and did remain so absent in desertion until on or about
20 .
In that (personal jurisdiction
data) having tendered his/her resignation and prior to due notice of the
acceptance of the same, did, on or about 20 , (a time of war) without leave and with intent to remain
away therefrom permanently, quit his/her (post) (proper duties), to wit:
, and did remain so absent in desertion until (he/she
was apprehended) on or about 20 .
In that (personal jurisdiction
data),
did (at/on board-location), on or about 20 , (a time of war) attempt to (absent himself/herself from his/her (unit) (organization) (place of duty) to wit: ,
without authority and with intent to remain away therefrom permanently)
(quit his/her (unit) (organization) (place of duty), to wit: , located at , with intent to (avoid hazardous
duty) (shirk important service) namely ) ( ).
Any member of the armed forces who, without authority-
fails to go to his appointed place of duty at the time prescribed;
goes from that place; or
**absents himself or remains absent from his unit, organization, or
place of duty at which he is required to be at the
time prescribed;
shall be punished as a court-martial may direct.**
for the accused;
That the accused knew of that time and place; and
That the accused, without authority, failed to go to the appointed
place of duty at the time prescribed.
for the accused;
That the accused knew of that time and place; and
That the accused, without authority, went from the appointed place
of duty after having reported at such place.
organization, or place of duty at which he or she was required to be;
give him or her leave; and
[Note: if the absence was terminated by apprehension, add
the following element]
That the accused was a member of a guard, watch, or duty;
That the accused absented himself or herself from his or her guard,
watch, or duty section;
[Note: If the absence was with intent to abandon the accused's
guard, watch, or duty section, add the following element]
duty section.
maneuvers or field exercises.
organization, or place of duty at which he or she was required to be;
That the absence of the accused was without authority;
That the absence was for a certain period of time;
That the accused knew that the absence would occur during a part
of a period of maneuvers or field exercises; and
or field exercises.
This article is designed to cover every case not elsewhere provided
for in which any member of the armed forces is through the member's own
fault not at the place where the member is required to be at a prescribed
time. It is not necessary that the person be absent entirely from military
jurisdiction and control. The first part of this article-relating to
the appointed place of duty-applies whether the place is appointed
as a rendezvous for several or for one only.
The offenses of failure to go to and going from appointed place
of duty require proof that the accused actually knew of the appointed time
and place of duty. The offense of absence from unit, organization, or place
of duty with intent to avoid maneuvers or field exercises requires proof
that the accused actually knew that the absence would occur during a part
of a period of maneuvers or field exercises. Actual knowledge may be proved
by circumstantial evidence.
Specific intent is not an element of unauthorized absence. Specific
intent is an element for certain aggravated unauthorized absences.
The status of absence without leave is not changed by an inability
to return through sickness, lack of transportation facilities, or other
disabilities. But the fact that all or part of a period of unauthorized
absence was in a sense enforced or involuntary is a factor in extenuation
and should be given due weight when considering the initial disposition of
the offense. When, however, a person on authorized leave, without fault,
is unable to return at the expiration thereof, that person has not committed
the offense of absence without leave.
A person undergoing transfer between activities is ordinarily considered
to be attached to the activity to which ordered to report. A person on temporary
additional duty continues as a member of the regularly assigned unit and
if the person is absent from the temporary duty assignment, the person becomes
absent without leave from both units, and may be charged with being absent
without leave from either unit.
Unauthorized absence under Article 86(3) is an instantaneous offense.
It is complete at the instant an accused absents himself or herself without
authority. Duration of the absence is a matter in aggravation for the purpose
of increasing the maximum punishment authorized for the offense. Even if
the duration of the absence is not over 3 days, it is ordinarily alleged
in an Article 86(3) specification. If the duration is not alleged or if
alleged but not proved, an accused can be convicted of and punished for
only 1 day of unauthorized absence.
In computing the duration of an unauthorized absence, any one continuous
period of absence found that totals not more than 24 hours is counted as
1 day; any such period that totals more than 24 hours and not more than
48 hours is counted as 2 days, and so on. The hours of departure and return
on different dates are assumed to be the same if not alleged and proved.
For example, if an accused is found guilty of unauthorized absence from
0600 hours, 4 April, to 1000 hours, 7 April of the same year (76 hours),
the maximum punishment would be based on an absence of 4 days. However, if
the accused is found guilty simply of unauthorized absence from 4 April to
7 April, the maximum punishment would be based on an absence of 3 days.
An accused may properly be found guilty of two or more separate
unauthorized absences under one specification, provided that each absence
is included within the period alleged in the specification and provided
that the accused was not misled. If an accused is found guilty of two or
more unauthorized absences under a single specification, the maximum authorized
punishment shall not exceed that authorized if the accused had been found
guilty as charged in the specification.
See paragraph 3 of this part and Appendix 12A.
Confinement for 1 month and forfeiture of two-thirds pay per month
for 1 month.
of two-thirds pay per month for 1 month.
6 months and forfeiture of two-thirds pay per month for 6months.
pay and allowances, and confinement for 1 year.
discharge, forfeiture of all pay and allowances, and confinement for 18
months.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction data),
did (at/on board-location), on or about 20
, without authority, (fail to go at the time prescribed
to) (go from) his/her appointed place of duty, to wit: (here set forth the
appointed place of duty).
In that (personal jurisdiction data),
did, on or about 20 , without
authority, absent himself/herself from his/her (unit) (organization) (place
of duty at which he/she was required to be), to wit: ,
located at , and did remain so absent until (he/she
was apprehended) on or about 20 .
maneuvers or field exercises.
In that (personal jurisdiction data),
did, on or about 20 , without
authority and with intent to avoid (maneuvers) (field exercises), absent
himself/herself from his/her (unit) (organization) (place of duty at which
he/she was required to be), to wit: located at ( ), and did remain so absent until on or about 20 .
In that (personal jurisdiction data),
being a member of the (guard) (watch) (duty section),
did, (at/on board-location), on or about 20 , without authority, go from his/her (guard) (watch) (duty
section) (with intent to abandon the same).
**Any person subject to this chapter who through
neglect or design misses the movement of a ship, aircraft, or unit with
which he is required in the course of duty to move shall be punished as
a court-martial may direct.**
a ship, aircraft or unit;
aircraft or unit;
and
"Movement" as used in Article 87 includes a move, transfer,
or shift of a ship, aircraft, or unit involving a substantial distance and
period of time. Whether a particular movement is substantial is a question
to be determined by the court-martial considering all the circumstances.
Changes which do not constitute a "movement" include practice
marches of a short duration with a return to the point of departure, and
minor changes in location of ships, aircraft, or units, as when a ship is
shifted from one berth to another in the same shipyard or harbor or when
a unit is moved from one barracks to another on the same post.
If a person is required in the course of duty to move with a unit,
the mode of travel is not important, whether it be military or commercial,
and includes travel by ship, train, aircraft, truck, bus, or walking. The
word "unit" is not limited to any specific technical category
such as those listed in a table of organization and equipment, but also includes
units which are created before the movement with the intention that they
have organizational continuity upon arrival at their destination regardless
of their technical designation, and units intended to be disbanded upon arrival
at their destination.
If a person is assigned as a crew member or is ordered to move as
a passenger aboard a particular ship or aircraft, military or chartered,
then missing the particular sailing or flight is essential to establish
the offense of missing movement.
"Design" means on purpose, intentionally, or according
to plan and requires specific intent to miss the movement.
"Neglect" means the omission to take such measures as
are appropriate under the circumstances to assure presence with a ship,
aircraft, or unit at the time of a scheduled movement, or doing some act
without giving attention to its probable consequences in connection with
the prospective movement, such as a departure from the vicinity of the prospective
movement to such a distance as would make it likely that one could not return
in time for the movement.
In order to be guilty of the offense, the accused must have actually
known of the prospective movement that was missed. Knowledge of the exact
hour or even of the exact date of the scheduled movement is not required.
It is sufficient if the approximate date was known by the accused as long
as there is a causal connection between the conduct of the accused and the
missing of the scheduled movement. Knowledge may be proved by circumstantial
evidence.
That the accused actually missed the movement may be proved by
documentary evidence, as by a proper entry in a log or a morning report.
This fact may also be proved by the testimony of personnel of the ship,
aircraft, or unit (or by other evidence) that the movement occurred at a
certain time, together with evidence that the accused was physically elsewhere
at that time.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location), on or
about 20 , through (neglect) (design) miss the movement of
(Aircraft No. ) (Flight ) (the
USS ) (Company A, 1st Battalion, 7th Infantry) ( ) with which he/she was required in the course of duty
to move.
**Any commissioned officer who uses contemptuous
words against the President, the Vice President, Congress, the Secretary
of Defense, the Secretary of a military department, the Secretary of Homeland Security,
or the Governor or legislature of any State, Territory, Commonwealth, or
possession in which he is on duty or present shall be punished as a court-martial
may direct.**
armed forces;
named in the article;
of a person other than the accused; and
virtue of the circumstances under which they were used.
[Note: If the words were against a Governor or legislature,
add the following element]
or possession of the Governor or legislature concerned.
The official or legislature against whom the words are used must
be occupying one of the offices or be one of the legislatures named in Article
88 at the time of the offense. Neither "Congress" nor "legislature"
includes its members individually. "Governor" does not include
"lieutenant governor." It is immaterial whether the words are
used against the official in an official or private capacity. If not personally
contemptuous, adverse criticism of one of the officials or legislatures
named in the article in the course of a political discussion, even though
emphatically expressed, may not be charged as a violation of the article.
Similarly, expressions of opinion made in a purely private conversation
should not ordinarily be charged. Giving broad circulation to a written publication
containing contemptuous words of the kind made punishable by this article,
or the utterance of contemptuous words of this kind in the presence of military
subordinates, aggravates the offense. The truth or falsity of the statements
is immaterial.
See paragraph 3 of this part and Appendix 12A.
Dismissal, forfeiture of all pay and allowances, and confinement
for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location), on or
about 20 , [use (orally and publicly)
() the following contemptuous words] [in a contemptuous
manner, use (orally and publicly) () the following
words] against the [(President) (Vice President) (Congress)
(Secretary of )] [(Governor) (legislature)
of the (State of ) (Territory of )
(), a (State) (Territory) ()
in which he/she, the said , was then (on duty), (present)],
to wit: " ," or words to that effect.
**Any person subject to this chapter who behaves
with disrespect toward his superior commissioned officer shall be punished
as a court-martial may direct.**
to or concerning a certain commissioned officer;
That such behavior or language was directed toward that officer;
That the officer toward whom the acts, omissions, or words were
directed was the superior commissioned officer of the accused;
whom the acts, omissions, or words were directed was the accused's superior
commissioned officer; and
to that commissioned officer.
If the accused and the victim are in the same uniformed service, the victim
is a "superior commissioned officer" of the accused when either
superior in rank or command to the accused; however, the victim is not a
"superior commissioned officer" of the accused if the victim
is inferior in command, even though superior in rank.
If the accused and the victim are in different uniformed services, the
victim is a "superior commissioned officer" of the accused when
the victim is a commissioned officer and superior in the chain of command
over the accused or when the victim, not a medical officer or a chaplain,
is senior in grade to the accused and both are detained by a hostile entity
so that recourse to the normal chain of command is prevented. The victim
is not a "superior commissioned officer" of the accused merely
because the victim is superior in grade to the accused.
It is not necessary that the "superior commissioned officer"
be in the execution of office at the time of the disrespectful behavior.
If the accused did not know that the person against whom the acts
or words were directed was the accused's superior commissioned officer,
the accused may not be convicted of a violation of this article. Knowledge
may be proved by circumstantial evidence.
Disrespectful behavior is that which detracts from the respect due
the authority and person of a superior commissioned officer. It may consist
of acts or language, however expressed, and it is immaterial whether they
refer to the superior as an officer or as a private individual. Disrespect
by words may be conveyed by abusive epithets or other contemptuous or denunciatory
language. Truth is no defense. Disrespect by acts includes neglecting the
customary salute, or showing a marked disdain, indifference, insolence,
impertinence, undue familiarity, or other rudeness in the presence of the
superior officer.
It is not essential that the disrespectful behavior be in the presence
of the superior, but ordinarily one should not be held accountable under
this article for what was said or done in a purely private conversation.
A superior commissioned officer whose conduct in relation to the
accused under all the circumstances departs substantially from the required
standards appropriate to that officer's rank or position under similar circumstances
loses the protection of this article. That accused may not be convicted
of being disrespectful to the officer who has so lost the entitlement to
respect protected by Article 89.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , behave himself/herself with disrespect toward , his/her superior commissioned officer, then known by
the said to be his/her superior commissioned officer,
by (saying to him/her " ," or words to
that effect) (contemptuously turning from and leaving him/her while he/she,
the said , was talking to him/her, the said ) ( ).
officer
Any person subject to this chapter who-
any weapon or offers any violence against him while he is in the execution
of his office; or**
officer;
shall be punished, if the offense is committed in time of
war, by death or such other punishment as a court-martial may direct, and
if the offense is committed at any other time, by such punishment, other
than death, as a court-martial may direct.**
offered violence against, a certain commissioned officer;
That the officer was the superior commissioned officer of the accused;
That the accused then knew that the officer was the accused's superior
commissioned officer; and
of office.
officer;
accused;
superior commissioned officer; and
The definitions in paragraph
13c(1)(a) and (b) apply here and in subparagraph c(2).
"Strikes" means an intentional blow, and includes any
offensive touching of the person of an officer, however slight.
The phrase "draws or lifts up any weapon against" covers
any simple assault committed in the manner stated. The drawing of any weapon
in an aggressive manner or the raising or brandishing of the same in a threatening
manner in the presence of and at the superior is the sort of act proscribed.
The raising in a threatening manner of a firearm, whether or not loaded,
of a club, or of anything by which a serious blow or injury could be given
is included in "lifts up."
The phrase "offers any violence against" includes any
form of battery or of mere assault not embraced in the preceding more specific
terms "strikes" and "draws or lifts up." If not
executed, the violence must be physically attempted or menaced. A mere threatening
in words is not an offering of violence in the sense of this article.
An officer is in the execution of office when engaged in any act
or service required or authorized by treaty, statute, regulation, the order
of a superior, or military usage. In general, any striking or use of violence
against any superior officer by a person over whom it is the duty of that
officer to maintain discipline at the time, would be striking or using violence
against the officer in the execution of office. The commanding officer on
board a ship or the commanding officer of a unit in the field is generally
considered to be on duty at all times.
If the accused did not know the officer was the accused's superior
commissioned officer, the accused may not be convicted of this offense.
Knowledge may be proved by circumstantial evidence.
In a prosecution for striking or assaulting a superior commissioned
officer in violation of this article, it is a defense that the accused acted
in the proper discharge of some duty, or that the victim behaved in a manner
toward the accused such as to lose the protection of this article
(see paragraph 13c(5)). For example, if the victim initiated an unlawful
attack on the accused, this would deprive the victim of the protection of
this article, and, in addition, could excuse any lesser included offense
of assault as done in self-defense, depending on the circumstances
(see paragraph 54c; R.C.M. 916(e)).
An order requiring the performance of a military duty or act may
be inferred to be lawful and it is disobeyed at the peril of the subordinate.
This inference does not apply to a patently illegal order, such as one that
directs the commission of a crime.
The lawfulness of an order is a question of law to be determined by the military judge.
The order must relate to military duty, which includes all activities
reasonably necessary to accomplish a military mission, or safeguard or promote
the morale, discipline, and usefulness of members of a command and directly
connected with the maintenance of good order in the service. The order may
not, without such a valid military purpose, interfere with private rights
or personal affairs. However, the dictates of a person's conscience, religion,
or personal philosophy cannot justify or excuse the disobedience of an otherwise
lawful order. Disobedience of an order which has for its sole object the
attainment of some private end, or which is given for the sole purpose of
increasing the penalty for an offense which it is expected the accused may
commit, is not punishable under this article.
The order must not conflict with the statutory or constitutional
rights of the person receiving the order.
The order must be directed specifically to the subordinate. Violations
of regulations, standing orders or directives, or failure to perform previously
established duties are not punishable under this article, but may violate
Article 92.
As long as the order is understandable, the form of the order is
immaterial, as is the method by which it is transmitted to the accused.
The order must be a specific mandate to do or not to do a specific
act. An exhortation to "obey the law" or to perform one's military
duty does not constitute an order under this article.
The accused must have actual knowledge of the order and of the fact
that the person issuing the order was the accused's superior commissioned
officer. Actual knowledge may be proved by circumstantial evidence.
"Willful disobedience" is an intentional defiance of
authority. Failure to comply with an order through heedlessness, remissness,
or forgetfulness is not a violation of this article but may violate Article
When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.
A discharged prisoner or other civilian subject to military law
(see Article 2) and under the command of a commissioned
officer is subject to the provisions of this article.
See paragraph 3 of this part and Appendix 12A.
to superior commissioned officer in the execution of office.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
Death or such other punishment as a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(a time of war) strike , his/her superior commissioned
officer, then known by the said to be his/her superior
commissioned officer, who was then in the execution of his/her office, (in)
(on) the with (a) (his/her) .
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(a time of war) (draw) lift up) a weapon, to wit: a ,
against , his/her superior commissioned officer, then
known by the said to be his/her superior commissioned
officer, who was then in the execution of his/her office.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(a time of war) offer violence against , his/her superior
commissioned officer, then known by the said to
be his/her superior commissioned officer, who was then in the execution
of his/her office, by .
In that (personal jurisdiction
data), having received a lawful command from , his/her
superior commissioned officer, then known by the said to
be his/her superior commissioned officer, to , or
words to that effect, did, (at/on board-location), on or about 20 , willfully disobey the same.
officer, or petty officer
Any warrant officer or enlisted member who-
or petty officer, while that officer is in the execution of his office;**
officer, or petty officer; or**
toward a warrant officer, noncommissioned officer, or petty officer while
that officer is in the execution of his office; shall be punished as a court-martial
may direct.**
That the accused was a warrant officer or enlisted member;
That the accused struck or assaulted a certain warrant, noncommissioned,
or petty officer;
in the execution of office; and
a warrant, noncommissioned, or petty officer.
[Note: If the victim was the superior noncommissioned or petty
officer of the accused, add the following elements]
of the accused; and
the accused's superior noncommissioned, or petty officer.
That the accused was a warrant officer or enlisted member;
That the accused received a certain lawful order from a certain
warrant, noncommissioned, or petty officer;
a warrant, noncommissioned, or petty officer;
That the accused had a duty to obey the order; and
That the accused willfully disobeyed the order.
toward a warrant, noncommissioned, or petty officer.
That the accused was a warrant officer or enlisted member;
That the accused did or omitted certain acts, or used certain language;
That such behavior or language was used toward and within sight
or hearing of a certain warrant, noncommissioned, or petty officer;
or language was directed was a warrant, noncommissioned, or petty officer;
That the victim was then in the execution of office; and
That under the circumstances the accused, by such behavior or language,
treated with contempt or was disrespectful to said warrant, noncommissioned,
or petty officer.
[Note: If the victim was the superior noncommissioned, or petty
officer of the accused, add the following elements]
of the accused; and
or language was directed was the accused's superior noncommissioned, or petty
officer.
Article 91 has the same general objects with respect to warrant,
noncommissioned, and petty officers as Articles 89 and 90 have with respect
to commissioned officers, namely, to ensure obedience to their lawful orders,
and to protect them from violence, insult, or disrespect. Unlike Articles
89 and 90, however, this article does not require a superior-subordinate
relationship as an element of any of the offenses denounced. This article
does not protect an acting noncommissioned officer or acting petty officer,
nor does it protect military police or members of the shore patrol who are
not warrant, noncommissioned, or petty officers.
All of the offenses prohibited by Article 91 require that the accused
have actual knowledge that the victim was a warrant, noncommissioned, or
petty officer. Actual knowledge may be proved by circumstantial evidence.
For a discussion of "strikes" and "in the execution
of office," see paragraph 14c. For a discussion of
"assault," see paragraph 54c. An assault by a prisoner who has
been discharged from the service, or by any other civilian subject to military
law, upon a warrant, noncommissioned, or petty officer should be charged
under Article 128 or 134.
See paragraph 14c(2) for a discussion of lawfulness,
personal nature, form, transmission, and specificity of the order, nature
of the disobedience, and time for compliance with the order.
toward a warrant, noncommissioned, or petty officer.
"Toward" requires that the behavior and language be
within the sight or hearing of the warrant, noncommissioned, or petty officer
concerned. For a discussion of "in the execution of his office," _
see_ paragraph 14c. For a discussion of disrespect, see
paragraph 13c.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
officer.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 9 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Forfeiture of two-thirds pay per month for 3 months, and confinement
for 3 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(strike) (assault) , a officer,
then known to the said to be a (superior) officer who was then in the execution of his/her office, by him/her (in) (on) (the ) with
(a) (his/her) .
In that (personal jurisdiction
data), having received a lawful order from , a
officer, then known by the said to
be a officer, to , an order
which it was his/her duty to obey, did (at/on board-location), on
or about 20 , willfully disobey
the same.
In that (personal jurisdiction
data) (at/on board-location), on or about 20 , [did treat with contempt] [was
disrespectful in (language) (deportment) toward] , a
officer, then known by the said to be a (superior) officer, who
was then in the execution of his/her office, by (saying to him/her, " ," or words to that effect) (spitting at his/her
feet) ( )
Any person subject to this chapter who-
violates or fails to obey any lawful general order or regulation;
**having knowledge of any other lawful order issued by a member of
the armed forces, which it is his duty to obey, fails to obey the order;
or**
as a court-martial may direct.**
That there was in effect a certain lawful general order or regulation;
That the accused had a duty to obey it; and
That the accused violated or failed to obey the order or regulation.
That a member of the armed forces issued a certain lawful order;
That the accused had knowledge of the order;
That the accused had a duty to obey the order; and
That the accused failed to obey the order.
That the accused had certain duties;
That the accused knew or reasonably should have known of the duties;
and
derelict in the performance of those duties.
(Note: In cases where the dereliction of duty resulted in death or grievous bodily harm, add the following as applicable)
A general order or regulation issued by a commander with authority
under Article 92(1) retains its character as a general order or regulation
when another officer takes command, until it expires by its own terms or
is rescinded by separate action, even if it is issued by an officer who is
a general or flag officer in command and command is assumed by another officer
who is not a general or flag officer.
A general order or regulation is lawful unless it is contrary to
the Constitution, the laws of the United States, or lawful superior orders
or for some other reason is beyond the authority of the official issuing
it. See the discussion of lawfulness in paragraph 14c(2)(a).
Knowledge of a general order or regulation need not be alleged or
proved, as knowledge is not an element of this offense and a lack of knowledge
does not constitute a defense.
Not all provisions in general orders or regulations can be enforced
under Article 92(1). Regulations which only supply general guidelines or
advice for conducting military functions may not be enforceable under Article
92(1).
Article 92(2) includes all other lawful orders which may be issued
by a member of the armed forces, violations of which are not chargeable
under Article 90, 91, or 92(1). It includes the violation of written regulations
which are not general regulations. See also subparagraph
(1)(e) above as applicable.
In order to be guilty of this offense, a person must have had actual
knowledge of the order or regulation. Knowledge of the order may be proved
by circumstantial evidence.
A member of one armed force who is senior in rank to a member of
another armed force is the superior of that member with authority to issue
orders which that member has a duty to obey under the same circumstances
as a commissioned officer of one armed force is the superior commissioned
officer of a member of another armed force for the purposes of Articles
89 and 90. See paragraph 13c(1).
Failure to obey the lawful order of one not a superior is an offense
under Article 92(2), provided the accused had a duty to obey the order,
such as one issued by a sentinel or a member of the armed forces police. _
See_ paragraph 15b(2) if the order was issued by a warrant, noncommissioned,
or petty officer in the execution of office.
A duty may be imposed by treaty, statute, regulation, lawful order,
standard operating procedure, or custom of the service.
Actual knowledge of duties may be proved by circumstantial evidence.
Actual knowledge need not be shown if the individual reasonably should have
known of the duties. This may be demonstrated by regulations, training or
operating manuals, customs of the service, academic literature or testimony,
testimony of persons who have held similar or superior positions, or similar
evidence.
A person is derelict in the performance of duties when that person
willfully or negligently fails to perform that person's duties or when that
person performs them in a culpably inefficient manner. "Willfully"
means intentionally. It refers to the doing of an act knowingly and purposely,
specifically intending the natural and probable consequences of the act.
"Negligently" means an act or omission of a person who is under
a duty to use due care which exhibits a lack of that degree of care which
a reasonably prudent person would have exercised under the same or similar
circumstances. "Culpable inefficiency" is inefficiency for which
there is no reasonable or just excuse.
A person is not derelict in the performance of duties if the failure
to perform those duties is caused by ineptitude rather than by willfulness,
negligence, or culpable inefficiency, and may not be charged under this
article, or otherwise punished. For example, a recruit who has tried earnestly
during rifle training and throughout record firing is not derelict in the
performance of duties if the recruit fails to qualify with the weapon.
Grievous bodily harm. "Grievous bodily harm" means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.
Where the dereliction of duty resulted in death or grievous bodily harm, an intent to cause death or grievous bodily harm is not required.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
[Note: For (1) and (2), above, the punishment set forth does
not apply in the following cases: if in the absence of the order or regulation
which was violated or not obeyed the accused would on the same facts be
subject to conviction for another specific offense for which a lesser punishment
is prescribed; or if the violation or failure to obey is a breach of restraint
imposed as a result of an order. In these instances, the maximum punishment
is that specifically prescribed elsewhere for that particular offense.]
Forfeiture of two-thirds pay per month for 3 months and confinement
for 3 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 18 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(Note: For (1) and (2) above, the punishment set forth does not apply in the following cases: if, in the absence of the order or regulation which was violated or not obeyed, the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed elsewhere for that particular offense.)
If the dereliction of duty resulted in death, the accused may also be charged under Article 119 or Article 134 (negligent homicide), as applicable.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(violate) (fail to obey) a lawful general (order) (regulation), to wit: (paragraph , (Army) (Air Force) Regulation ,
dated 20 ) (Article
, U.S. Navy Regulations, dated 20 ) (General Order No. , U.S. Navy,
dated 20 ) (), by (wrongfully) .
In that (personal jurisdiction
data), having knowledge of a lawful order issued by ,
to wit: (paragraph , ( the
Combat Group Regulation No. ) (USS
, Regulation ), dated
) ( ), an order which
it was his/her duty to obey, did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
20 , fail to obey the same by (wrongfully) .
In that , (personal jurisdiction
data) having knowledge of a lawful order issued by (to
submit to certain medical treatment) (to ) (not
to ) ( ), an order which
it was his/her duty to obey, did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about 20
, fail to obey the same (by (wrongfully) .)
In that , (personal jurisdiction
data), who (knew) (should have known) of his/her duties (at/on board-location)
(subject-matter jurisdiction data, if required), (on or about 20) (from about 20 to about 20 ),
was derelict in the performance of those duties in that he/she (negligently)
(willfully) (by culpable inefficiency) failed , as
it was his/her duty to do (, and that such dereliction of duty resulted in (grievous bodily harm, to wit: (broken leg) (deep cut) (fractured skull) to) (the death of) ).
**Any person subject to this chapter who is guilty
of cruelty toward, or oppression or maltreatment of, any person subject
to his orders shall be punished as a court-martial may direct.**
and
person.
"Any person subject to his orders" means not only those
persons under the direct or immediate command of the accused but extends
to all persons, subject to the code or not, who by reason of some duty are
required to obey the lawful orders of the accused, regardless whether the
accused is in the direct chain of command over the person.
The cruelty, oppression, or maltreatment, although not necessarily
physical, must be measured by an objective standard. Assault, improper punishment,
and sexual harassment may constitute this offense. Sexual harassment includes
influencing, offering to influence, or threatening the career, pay, or job
of another person in exchange for sexual favors, and deliberate or repeated
offensive comments or gestures of a sexual nature. The imposition of necessary
or proper duties and the exaction of their performance does not constitute
this offense even though the duties are arduous or hazardous or both.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
In that (personal jurisdiction
data), (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
(was cruel toward) (did (oppress) (maltreat)) , a
person subject to his/her orders, by (kicking him/her in the stomach) (confining
him/her for twenty-four hours without water) ().
Any person subject to this chapter who-
in concert with any other person, to obey orders or otherwise do his duty
or creates any violence or disturbance is guilty of mutiny;**
authority, creates, in concert with any other person, revolt, violence,
or other disturbance against that authority is guilty of sedition;**
being committed in his presence, or fails to take all reasonable means to
inform his superior commissioned officer or commanding officer of a mutiny
or sedition which he knows or has reason to believe is taking place, is
guilty of a failure to suppress or report a mutiny or sedition.**
or failure to suppress or report a mutiny or sedition shall be punished
by death or such other punishment as a court-martial may direct.**
That the accused created violence or a disturbance; and
That the accused created this violence or disturbance with intent
to usurp or override lawful military authority.
duty;
in concert with another person or persons; and
military authority.
lawful civil authority;
and
destruction of that authority.
of the accused; and
suppress the mutiny or sedition.
That an offense of mutiny or sedition occurred;
That the accused knew or had reason to believe that the offense
was taking place; and
accused's superior commissioned officer or commander of the offense.
That the accused committed a certain overt act;
That the act was done with specific intent to commit the offense
of mutiny;
That the act amounted to more than mere preparation; and
That the act apparently tended to effect the commission of the
offense of mutiny.
Article 94(a)(1) defines two types of mutiny, both
requiring an intent to usurp or override military authority.
Mutiny by creating violence or disturbance may be committed by one
person acting alone or by more than one acting together.
Mutiny by refusing to obey orders or perform duties requires collective
insubordination and necessarily includes some combination of two or more
persons in resisting lawful military authority. This concert of insubordination
need not be preconceived, nor is it necessary that the insubordination be
active or violent. It may consist simply of a persistent and concerted refusal
or omission to obey orders, or to do duty, with an insubordinate intent,
that is, with an intent to usurp or override lawful military authority.
The intent may be declared in words or inferred from acts, omissions, or
surrounding circumstances.
Sedition requires a concert of action in resistance to civil authority.
This differs from mutiny by creating violence or disturbance. _See
_ subparagraph c(1)(a) above.
"Utmost" means taking those measures to prevent and
suppress a mutiny or sedition which may properly be called for by the circumstances,
including the rank, responsibilities, or employment of the person concerned.
"Utmost" includes the use of such force, including deadly force,
as may be reasonably necessary under the circumstances to prevent and suppress
a mutiny or sedition.
Failure to "take all reasonable means to inform" includes
failure to take the most expeditious means available. When the circumstances
known to the accused would have caused a reasonable person in similar circumstances
to believe that a mutiny or sedition was occurring, this may establish that
the accused had such "reason to believe" that mutiny or sedition
was occurring. Failure to report an impending mutiny or sedition is not an
offense in violation of Article 94. But see paragraph 16c(3)
(dereliction of duty).
For a discussion of attempts, see paragraph 4.
See paragraph 3 of this part and Appendix 12A.
For all offenses under Article 94, death or such other punishment
as a court-martial may direct.
In that (personal jurisdiction
data), with intent to (usurp) (override) (usurp and override) lawful military
authority, did, (at/on board-location) (subject-matter jurisdiction
data, if required), on or about 20 , create (violence) (a disturbance) by (attacking the officers
of the said ship) (barricading himself/herself in Barracks T7, firing his/her
rifle at , and exhorting other persons to join him/her
in defiance of ) ().
In that (personal jurisdiction
data), with intent to (usurp) (override) (usurp and override) lawful military
authority, did, (at/on board- location) on or about 20 , refuse, in concert with (and ) (others whose names are unknown),
to (obey the orders of to )
(perform his/her duty as ).
In that (personal jurisdiction
data), with intent to cause the (overthrow) (destruction) (overthrow and
destruction) of lawful civil authority, to wit: ,
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , in concert
with ( ) and ( ) (others whose
names are unknown), create (revolt) (violence) (a disturbance) against such
authority by (entering the Town Hall of and destroying
property and records therein) (marching upon and compelling the surrender
of the police of ) ( ).
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
fail to do his/her utmost to prevent and suppress a (mutiny) (sedition)
among the (soldiers) (sailors) (airmen) (marines) ( )
of , which (mutiny) (sedition) was being committed
in his/her presence, in that (he/she took no means to compel the dispersal
of the assembly) (he/she made no effort to assist who
was attempting to quell the mutiny) ( ).
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
fail to take all reasonable means to inform his/her superior commissioned
officer or his/her commander of a (mutiny) (sedition) among the (soldiers)
(sailors) (airmen) (marines) ( ) of , which (mutiny) (sedition) he/she, the said (knew)
(had reason to believe) was taking place.
In that (personal jurisdiction
data), with intent to (usurp) (override) (usurp and override) lawful military
authority, did, (at/on board- location) (subject-matter jurisdiction
data, if required), on or about 20 , attempt to (create (violence) (a disturbance) by
) ().
Any person subject to this chapter who-
resists apprehension;
flees from apprehension;
breaks arrest; or
**escapes from custody or confinement;
shall be punished as a court-martial may direct.**
That a certain person attempted to apprehend the accused;
That said person was authorized to apprehend the accused; and
That the accused actively resisted the apprehension.
That a certain person attempted to apprehend the accused;
That said person was authorized to apprehend the accused; and
That the accused fled from the appre- hension.
That a certain person ordered the accused into arrest;
That said person was authorized to order the accused into arrest;
and
released from that arrest by proper authority.
That a certain person apprehended the accused;
That said person was authorized to apprehend the accused; and
That the accused freed himself or herself from custody before being
released by proper authority.
That a certain person ordered the accused into confinement;
That said person was authorized to order the accused into confinement;
and
being released by proper authority.
[Note: If the escape was post-trial confinement, add the following
element]
Apprehension is the taking of a person into custody. _ See
_ R.C.M. 302.
The resistance must be active, such as assaulting the person attempting
to apprehend. Mere words of opposition, argument, or abuse, and attempts
to escape from custody after the apprehension is complete, do not constitute
the offense of resisting apprehension although they may constitute other
offenses.
It is a defense that the accused held a reasonable belief that the
person attempting to apprehend did not have authority to do so. However,
the accused's belief at the time that no basis exists for the apprehension
is not a defense.
A person may not be convicted of resisting apprehension if the
attempted apprehension is illegal, but may be convicted of other offenses,
such as assault, depending on all the circumstances. An attempted apprehension
by a person authorized to apprehend is presumed to be legal in the absence
of evidence to the contrary. Ordinarily the legality of an apprehension is
a question of law to be decided by the military judge.
The flight must be active, such as running or driving away.
There are two types of arrest: pretrial arrest under Article 9
(see R.C.M. 304) and arrest under Article 15 (_see
_ paragraph 5c(3), Part V, MCM). This article prohibits breaking
any arrest.
In arrest, the restraint is moral restraint imposed by orders fixing
the limits of arrest.
Breaking arrest is committed when the person in arrest infringes
the limits set by orders. The reason for the infringement is immaterial.
For example, innocence of the offense with respect to which an arrest may
have been imposed is not a defense.
A person may not be convicted of breaking arrest if the arrest is
illegal. An arrest ordered by one authorized to do so is presumed to be
legal in the absence of some evidence to the contrary. Ordinarily, the legality
of an arrest is a question of law to be decided by the military judge.
"Custody" is restraint of free locomotion imposed by
lawful apprehension. The restraint may be physical or, once there has been
a submission to apprehension or a forcible taking into custody, it may consist
of control exercised in the presence of the prisoner by official acts or
orders. Custody is temporary restraint intended to continue until other restraint
(arrest, restriction, confinement) is imposed or the person is released.
For a discussion of escape, see subparagraph
c(5)(c), below.
A person may not be convicted of this offense if the custody was
illegal. An apprehension effected by one authorized to apprehend is presumed
to be lawful in the absence of evidence to the contrary. Ordinarily, the
legality of an apprehension is a question of law to be decided by the military
judge.
See paragraph 70.
Confinement is physical restraint imposed under R.C.M. 305, 1101,
or paragraph 5b, Part V, MCM. For purposes of the element of post-trial
confinement (subparagraph b(5)(d), above) and increased punishment therefrom
(subparagraph e(4), below), the confinement must have been imposed pursuant
to an adjudged sentence of a court-martial and not as a result of pretrial
restraint or nonjudicial punishment.
An escape may be either with or without force or artifice, and either
with or without the consent of the custodian. However, where a prisoner
is released by one with apparent authority to do so, the prisoner may not
be convicted of escape from confinement. See also paragraph
20c(1)(b). Any completed casting off of the restraint of confinement, before
release by proper authority, is an escape, and lack of effectiveness of
the restraint imposed is immaterial. An escape is not complete until the
prisoner is momentarily free from the restraint. If the movement toward escape
is opposed, or before it is completed, an immediate pursuit follows, there
is no escape until opposition is overcome or pursuit is eluded.
A prisoner who is temporarily escorted outside a confinement facility
for a work detail or other reason by a guard, who has both the duty and
means to prevent that prisoner from escaping, remains in confinement.
A person may not be convicted of escape from confinement if the
confinement is illegal. Confinement ordered by one authorized to do so is
presumed to be lawful in the absence of evidence to the contrary. Ordinarily,
the legality of confinement is a question of law to be decided by the military
judge.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
and water or diminished rations imposed pursuant to Article 15.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
resist being apprehended by , (an armed force policeman)
( ), a person authorized to apprehend the accused.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
flee apprehension by , (an armed force policeman)
( ), a person authorized to apprehend the accused.
In that (personal jurisdiction
data), having been placed in arrest (in quarters) (in his/her company area)
( ) by a person authorized to order the accused into
arrest, did, (at/on board-location) on or about 20 , break said arrest.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
escape from the custody of , a person authorized
to apprehend the accused.
In that (personal jurisdiction
data), having been placed in (post-trial) confinement in (place of confinement),
by a person authorized to order said accused into confinement did, (at/on
board-location) (subject-matter jurisdiction data, if required), on
or about 20 , escape from
confinement.
**Any person subject to this chapter who, except
as provided by law, apprehends, arrests, or confines any person shall be
punished as a court-martial may direct.**
and
do so.
This article prohibits improper acts by those empowered by the code
to arrest, apprehend, or confine. See Articles 7 and 9;
R.C.M. 302, 304, 305, and 1101, and paragraphs 2 and 5b, Part V. It does
not apply to private acts of false imprisonment or unlawful restraint of
another's freedom of movement by one not acting under such a delegation of
authority under the code.
The apprehension, arrest, or confinement must be against the will
of the person restrained, but force is not required.
A reasonable belief held by the person imposing restraint that it
is lawful is a defense.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , unlawfully (apprehend ) (place in arrest) (confine in ).
Any person subject to this chapter who-
case of a person accused of an offense under this chapter; or**
provision of this chapter regulating the proceedings before, during, or after
trial of an accused; shall be punished as a court-martial may direct.**
the disposition of a case of a person accused of an offense under the code;
That the accused knew that the accused was charged with this duty;
That delay occurred in the disposition of the case;
That the accused was responsible for the delay; and
That, under the circumstances, the delay was unnecessary.
of the code.
of the code regulating a proceeding before, during, or after a trial;
provision of the code;
and
was intentional.
The purpose of section (1) of Article 98 is to ensure expeditious
disposition of cases of persons accused of offenses under the code. A person
may be responsible for delay in the disposition of a case only when that
person's duties require action with respect to the disposition of that case.
of the code.
Section (2) of Article 98 does not apply to errors made in good
faith before, during, or after trial. It is designed to punish intentional
failure to enforce or comply with the provisions of the code regulating
the proceedings before, during, and after trial. Unlawful command influence
under Article 37 may be prosecuted under this Article. See also Article
31 and R.C.M. 104.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
of the code.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), being charged with the duty of ((investigating) (taking immediate
steps to determine the proper disposition of) charges preferred against , a person accused of an offense under the Uniform Code
of Military Justice) (), was, (at/on board-location),
on or about 20 , responsible
for unnecessary delay in (investigating said charges) (determining the proper
disposition of said charges (), in that he/she (did ) (failed to ) ().
of the code.
In that (personal jurisdiction
data), being charged with the duty of , did, (at/on
board-location), on or about 20 , knowingly and intentionally fail to (enforce) (comply with) Article , Uniform Code of Military Justice, in that he/she .
**Any member of the armed forces who before or
in the presence of the enemy-**
runs away;
**shamefully abandons, surrenders, or delivers up any command, unit,
place, or military property which it is his duty to defend;**
the safety of any such command, unit, place, or military property;**
casts away his arms or ammunition;
is guilty of cowardly conduct;
quits his place of duty to plunder or pillage;
**causes false alarms in any command, unit, or place under control
of the armed forces;**
or destroy any enemy troops, combatants, vessels, aircraft, or any other
thing, which it is his duty so to encounter, engage, capture, or destroy;
or**
combatants, vessels, or aircraft of the armed forces belonging to the United
States or their allies when engaged in battle; shall be punished by death
or such other punishment as a court-martial may direct.**
That the accused was before or in the presence of the enemy;
That the accused misbehaved by running away; and
That the accused intended to avoid actual or impending combat with
the enemy by running away.
duty to defend a certain command, unit, place, ship, or military property;
surrendered, or delivered up that command, unit, place, ship, or military
property; and
of the enemy.
unit, place, ship, or certain military property;
misconduct;
unit, place, ship, or military property; and
of the enemy.
That the accused was before or in the presence of the enemy; and
That the accused cast away certain arms or ammunition.
That the accused committed an act of cowardice;
That this conduct occurred while the accused was before or in the
presence of the enemy; and
That the accused was before or in the presence of the enemy;
That the accused quit the accused's place of duty; and
That the accused's intention in quitting was to plunder or pillage
public or private property.
control of the armed forces of the United States;
That the accused caused the alarm;
That the alarm was caused without any reasonable or sufficient
justification or excuse; and
of the enemy.
That the accused was serving before or in the presence of the enemy;
That the accused had a duty to encounter, engage, capture, or destroy
certain enemy troops, combatants, vessels, aircraft, or a certain other thing;
and
duty.
forces belonging to the United States or an ally of the United States were
engaged in battle and required relief and assistance;
assistance to these troops, combatants, vessels, or aircraft, without jeopardy
to the accused's mission;
and
the enemy.
"Running away" means an unauthorized departure to avoid
actual or impending combat. It need not, however, be the result of fear,
and there is no requirement that the accused literally run.
"Enemy" includes organized forces of the enemy in time
of war, any hostile body that our forces may be opposing, such as a rebellious
mob or a band of renegades, and includes civilians as well as members of
military organizations. "Enemy" is not restricted to the enemy
government or its armed forces. All the citizens of one belligerent are enemies
of the government and all the citizens of the other.
Whether a person is "before the enemy" is a question
of tactical relation, not distance. For example, a member of an antiaircraft
gun crew charged with opposing anticipated attack from the air, or a member
of a unit about to move into combat may be before the enemy although miles
from the enemy lines. On the other hand, an organization some distance from
the front or immediate area of combat which is not a part of a tactical
operation then going on or in immediate prospect is not "before or
in the presence of the enemy" within the meaning of this article.
This provision concerns primarily commanders chargeable with responsibility
for defending a command, unit, place, ship or military property. Abandonment
by a subordinate would ordinarily be charged as running away.
Surrender or abandonment without justification is shameful within
the meaning of this article.
"Surrender" and "deliver up" are synonymous
for the purposes of this article.
Surrender or abandonment of a command, unit, place, ship, or military
property by a person charged with its can be justified only by the utmost
necessity or extremity.
"Neglect" is the absence of conduct which would have
been taken by a reasonably careful person in the same or similar circumstances.
"Intentional misconduct" does not include a mere error
in judgment.
Self-explanatory.
"Cowardice" is misbehavior motivated by fear.
Fear is a natural feeling of apprehension when going into battle.
The mere display of apprehension does not constitute this offense.
Refusal or abandonment of a performance of duty before or in the
presence of the enemy as a result of fear constitutes this offense.
Genuine and extreme illness, not generated by cowardice, is a defense.
"Place of duty" includes any place of duty, whether
permanent or temporary, fixed or mobile.
"Plunder or pillage" means to seize or appropriate public
or private property unlawfully.
The essence of this offense is quitting the place of duty with intent
to plunder or pillage. Merely quitting with that purpose is sufficient,
even if the intended misconduct is not done.
This provision covers spreading of false or disturbing rumors or
reports, as well as the false giving of established alarm signals.
Willfully refusing a lawful order to go on a combat patrol may
violate this provision.
"All practicable relief and assistance" means all relief
and assistance which should be afforded within the limitations imposed upon
a person by reason of that person's own specific tasks or mission.
This offense is limited to a failure to afford relief and assistance
to forces "engaged in battle."
See paragraph 3 of this part and Appendix 12A.
All offenses under Article 99. Death or such other punishment as
a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, run
away (from his/her company) (and hide) (), (and did
not return until after the engagement had been concluded) ( ).
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, shamefully
(abandon) (surrender) (deliver up) , which it was
his/her duty to defend.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, endanger the
safety of , which it was his/her duty to defend,
by (disobeying an order from to engage the enemy)(neglecting
his/her duty as a sentinel by engaging in a card game while on his/her post)
(intentional misconduct in that he/she became drunk and fired flares, thus
revealing the location of his/her unit) ().
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, cast away his/her
(rifle) (ammunition) ().
In that (personal jurisdiction
data), (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, was guilty of
cowardly conduct as a result of fear, in that .
In that (personal jurisdiction
data), did, (at/on board- location), on or about
20 , (before) (in the presence of) the enemy, quit his/her
place of duty for the purpose of (plundering) (pillaging) (plundering and
pillaging).
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, cause
a false alarm in (Fort ) (the said ship) (the camp)
() by (needlessly and without authority (causing the
call to arms to be sounded) (sounding the general alarm)) ( ).
In that (personal jurisdiction
data), being (before) (in the presence of) the enemy, did, (at/on board-location),
on or about 20 , by, (ordering
his/her troops to halt their advance)
( ), willfully
fail to do his/her utmost to (encounter) (engage) (capture) (destroy), as
it was his/her duty to do, (certain enemy troops which were in retreat) ( ).
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (before) (in the presence of) the enemy, fail to afford
all practicable relief and assistance to (the USS ,
which was engaged in battle and had run aground, in that he/she failed to
take her in tow) (certain troops of the ground forces of , which were engaged in battle and were pinned down by enemy fire,
in that he/she failed to furnish air cover) ( ) as
he/she properly should have done.
**Any person subject to this chapter who compels
or attempts to compel the commander of any place, vessel, aircraft, or other
military property, or of any body of members of the armed forces, to give
it up to an enemy or to abandon it, or who strikes the colors or flag to
an enemy without proper authority, shall be punished by death or such other
punishment as a court-martial may direct.**
aircraft, or other military property or of a body of members of the armed
forces;
compel that commander to give it up to the enemy or abandon it; and
body of members of the armed forces was actually given up to the enemy or
abandoned.
aircraft, or other military property or of a body of members of the armed
forces;
That the accused did a certain overt act;
That the act was done with the intent to compel that commander to
give up to the enemy or abandon the place, vessel, aircraft, or other military
property or body of members of the armed forces;
That the act amounted to more than mere preparation; and
That the act apparently tended to bring about the compelling of
surrender or abandonment.
That there was an offer of surrender to an enemy;
That this offer was made by striking the colors or flag to the enemy
or in some other manner;
That the accused made or was responsible for the offer; and
That the accused did not have proper authority to make the offer.
The offenses under this article are similar to mutiny or attempted
mutiny designed to bring about surrender or abandonment. Unlike some cases
of mutiny, however, concert of action is not an essential element of the
offenses under this article. The offense is not complete until the place,
military property, or command is actually abandoned or given up to the enemy.
"Surrender" and "to give it up to an enemy"
are synonymous.
The surrender or abandonment must be compelled or attempted to be
compelled by acts rather than words.
The offense of attempting to compel a surrender or abandonment does
not require actual abandonment or surrender, but there must be some act
done with this purpose in view, even if it does not accomplish the purpose.
To "strike the colors or flag" is to haul down the colors
or flag in the face of the enemy or to make any other offer of surrender.
It is traditional wording for an act of surrender.
The offense is committed when one assumes the authority to surrender
a military force or position when not authorized to do so either by competent
authority or by the necessities of battle. If continued battle has become
fruitless and it is impossible to communicate with higher authority, those
facts will constitute proper authority to surrender. The offense may be committed
whenever there is sufficient contact with the enemy to give the opportunity
of making an offer of surrender and it is not necessary that an engagement
with the enemy be in progress. It is unnecessary to prove that the offer
was received by the enemy or that it was rejected or accepted. The sending
of an emissary charged with making the offer or surrender is an act sufficient
to prove the offer, even though the emissary does not reach the enemy.
For a discussion of "enemy," see paragraph
23c(1)(b).
See paragraph 3 of this part and Appendix 12A.
All offenses under Article 100. Death or such other punishment as
a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (attempt to) compel , the commander
of , (to give up to the enemy) (to abandon) said , by .
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , without proper authority, offer to surrender
to the enemy by (striking the (colors) (flag)) ().
**Any person subject to this chapter who in time
of war discloses the parole or countersign to any person not entitled to
receive it or who gives to another who is entitled to receive and use the
parole or countersign a different parole or countersign from that which,
to his knowledge, he was authorized and required to give, shall be punished
by death or such other punishment as a court-martial may direct.**
it.
to a person, identified or unidentified; and
A countersign is a word, signal, or procedure given from the principal
headquarters of a command to aid guards and sentinels in their scrutiny of
persons who apply to pass the lines. It consists of a secret challenge and
a password, signal, or procedure.
A parole is a word used as a check on the countersign; it is given
only to those who are entitled to inspect guards and to commanders of guards.
The class of persons entitled to receive the countersign or parole
will expand and contract under the varying circumstances of war. Who these
persons are will be determined largely, in any particular case, by the general
or special orders under which the accused was acting. Before disclosing such
a word, a person subject to military law must determine at that person's
peril that the recipient is a person authorized to receive it.
The accused's intent or motive in disclosing the countersign or
parole is immaterial to the issue of guilt, as is the fact that the disclosure
was negligent or inadvertent. It is no defense that the accused did not
know that the person to whom the countersign or parole was given was not
entitled to receive it.
It is immaterial whether the accused had received the countersign
or parole in the regular course of duty or whether it was obtained in some
other way.
See R.C.M. 103(19).
See paragraph 3 of this part and Appendix 12A.
Death or such other punishment as a court-martial may direct.
it.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , a time of war, disclose the (parole) (countersign),
to wit: , to , a person
who was not entitled to receive it.
**Any person subject to this chapter who forces
a safeguard shall suffer death or such other punishment as a court-martial
may direct.**
a certain person or persons, place, or property;
That the accused knew or should have known of the safeguard; and
That the accused forced the safeguard.
A safeguard is a detachment, guard, or detail posted by a commander
for the protection of persons, places, or property of the enemy, or of a
neutral affected by the relationship of belligerent forces in their prosecution
of war or during circumstances amounting to a state of belligerency. The
term also includes a written order left by a commander with an enemy subject
or posted upon enemy property for the protection of that person or property.
A safeguard is not a device adopted by a belligerent to protect its own property
or nationals or to ensure order within its own forces, even if those forces
are in a theater of combat operations, and the posting of guards or of off-limits
signs does not establish a safeguard unless a commander takes those actions
to protect enemy or neutral persons or property. The effect of a safeguard
is to pledge the honor of the nation that the person or property shall be
respected by the national armed forces.
"Forcing a safeguard" means to perform an act or acts
in violation of the protection of the safeguard.
Any trespass on the protection of the safeguard will constitute
an offense under this article, whether the safeguard was imposed in time
of war or in circumstances amounting to a state of belligerency short of
a formal state of war.
Actual knowledge of the safeguard is not required. It is sufficient
if an accused should have known of the existence of the safeguard.
See paragraph 3 of this part and Appendix 12A.
Death or such other punishment as a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , force a safeguard, (known by him/her to have been placed
over the premises occupied by at by
(overwhelming the guard posted for the protection of the same)
()) ().
taken from the enemy for the service of the United States, and shall give
notice and turn over to the proper authority without delay all captured
or abandoned property in their possession, custody, or control.**
(a);**
or abandoned property, whereby he receives or expects any profit, benefit,
or advantage to himself or another directly or indirectly connected with
himself; or**
shall be punished as a court-martial
may direct.**
That certain public property was taken from the enemy;
That this property was of a certain value; and
That the accused failed to do what was reasonable under the circumstances
to secure this property for the service of the United States.
into the possession, custody, or control of the accused;
That this property was of a certain value; and
That the accused failed to give notice of its receipt and failed
to turn over to proper authority, without delay, the captured or abandoned
public or private property.
disposed of certain public or private captured or abandoned property;
That this property was of certain value; and
That by so doing the accused received or expected some profit,
benefit, or advantage to the accused or to a certain person or persons connected
directly or indirectly with the accused.
pillaging by unlawfully seizing or appropriating certain public or private
property;
that it was on board a seized or captured vessel; and
That this property was:
left behind, owned by, or in the custody of the enemy, an occupied
state, an inhabitant of an occupied state, or a person under the protection
of the enemy or occupied state, or who, immediately prior to the occupation
of the place where the act occurred, was under the protection of the enemy
or occupied state; or
part of the equipment of a seized or captured vessel; or
owned by, or in the custody of the officers, crew, or passengers
on board a seized or captured vessel.
Unlike the remaining offenses under this article, failing to secure
public property taken from the enemy involves only public property. Immediately
upon its capture from the enemy public property becomes the property of
the United States. Neither the person who takes it nor any other person has
any private right in this property.
Every person subject to military law has an immediate duty to take
such steps as are reasonably within that person's power to secure public
property for the service of the United States and to protect it from destruction
or loss.
Reports of receipt of captured or abandoned property are to be made
directly or through such channels as are required by current regulations,
orders, or the customs of the service.
"Disposed of" includes destruction or abandonment.
"Looting or pillaging" means unlawfully seizing or
appropriating property which is located in enemy or occupied territory.
For a discussion of "enemy," see paragraph 23c(1)(b).
See paragraph 3 of this part and Appendix 12A.
secure, give notice and turn over, selling, or otherwise wrongfully dealing
in or disposing of captured or abandoned property:
of all pay and allowances, and confinement for 6 months.
discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Any punishment, other than death, that a court-martial may direct. _
See_ R.C.M. 1003.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , fail to secure for the service of the United
States certain public property taken from the enemy, to wit:
, of a value of (about) $ .
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , fail to give notice and turn over to proper
authority without delay certain (captured) (abandoned) property which had
come into his/her (possession) (custody) (control), to wit: , of a value of (about), $ .
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (buy) (sell) (trade) (deal in) (dispose of)
() certain (captured) (abandoned) property, to wit:
, (a firearm) (an explosive), of a value of (about)
$ , thereby (receiving) (expecting) a (profit) (benefit)
(advantage) to (himself/herself) ( , his/her
accomplice) ( , his/her brother) ( ).
In that (personal jurisdiction data), did, (at/onboard-location), on or about (date), engage in (looting) (and) (pillaging) by unlawfully (seizing) (appropriating) , (property which had been left behind) (the property of ), ((an inhabitant of ) ( )).
Any person who-
money, or other things; or**
intelligence to or communicates or corresponds with or holds any intercourse
with the enemy, either directly or indirectly; shall suffer death or such
other punishment as a court-martial or military commission may direct.**
That the accused aided the enemy; and
That the accused did so with certain arms, ammunition, supplies,
money, or other things.
That the accused did a certain overt act;
That the act was done with the intent to aid the enemy with certain
arms, ammunition, supplies, money, or other things;
That the act amounted to more than mere preparation; and
That the act apparently tended to bring about the offense of aiding
the enemy with certain arms, ammunition, supplies, money, or other things.
a person;
That the person so harbored or protected was the enemy; and
That the accused knew that the person so harbored or protected was
an enemy.
information to the enemy; and
at least in part.
or held intercourse with the enemy; and;
or holding intercourse with the enemy.
This article denounces offenses by all persons whether or not otherwise
subject to military law. Offenders may be tried by court-martial or by military
commission.
For a discussion of "enemy," see paragraph
23c(1)(b).
It is not a violation of this article to furnish prisoners of war
subsistence, quarters, and other comforts or aid to which they are lawfully
entitled.
An enemy is harbored or protected when, without proper authority,
that enemy is shielded, either physically or by use of any artifice, aid,
or representation from any injury or misfortune which in the chance of war
may occur.
Actual knowledge is required, but may be proved by circumstantial
evidence.
Giving intelligence to the enemy is a particular case of corresponding
with the enemy made more serious by the fact that the communication contains
intelligence that may be useful to the enemy for any of the many reasons
that make information valuable to belligerents. This intelligence may be
conveyed by direct or indirect means.
"Intelligence" imports that the information conveyed
is true or implies the truth, at least in part.
Actual knowledge is required but may be proved by circumstantial
evidence.
No unauthorized communication, correspondence, or intercourse with
the enemy is permissible. The intent, content, and method of the communication,
correspondence, or intercourse are immaterial. No response or receipt by
the enemy is required. The offense is complete the moment the communication,
correspondence, or intercourse issues from the accused. The communication,
correspondence, or intercourse may be conveyed directly or indirectly. A
prisoner of war may violate this Article by engaging in unauthorized communications
with the enemy. See also paragraph 29c(3).
Actual knowledge is required but may be proved by circumstantial
evidence.
Citizens of neutral powers resident in or visiting invaded or occupied
territory can claim no immunity from the customary laws of war relating to
communication with the enemy.
See paragraph 3 of this part and Appendix 12A.
Death or such other punishment as a court-martial or military commission
may direct.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , (attempt to) aid the enemy with (arms) (ammunition)
(supplies) (money) ( ), by (furnishing and delivering
to , members of the enemy's armed forces
) ().
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , without proper authority, knowingly (harbor)
(protect) , an enemy, by (concealing the said in his/her house) ().
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , without proper authority, knowingly give intelligence
to the enemy, by (informing a patrol of the enemy's forces of the whereabouts
of a military patrol of the United States forces) ().
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , without proper authority, knowingly (communicate
with) (correspond with) (hold intercourse with) the enemy (by writing and
transmitting secretly through the lines to one ,
whom he/she, the said , knew to be (an officer of
the enemy's armed forces) () a communication in words
and figures substantially as follows, to wit: )) ((indirectly
by publishing in , a newspaper published at
, a communication in words and figures as follows, to wit:
, which communication was intended to reach the enemy)) (()).
**Any person subject to this chapter who, while
in the hands of the enemy in time of war-**
acts without proper authority in a manner contrary to law, custom, or regulation,
to the detriment of others of whatever nationality held by the enemy as
civilian or military prisoners; or**
without justifiable cause; shall be punished as a court-martial may direct.**
For a discussion of "enemy," see paragraph
23c(1)(b).
See R.C.M. 103(19).
See paragraph 3 of this part and Appendix 12A.
Any punishment other than death that a court-martial may direct. _
See_ R.C.M. 1003.
**Any person who in time of war is found lurking
as a spy or acting as a spy in or about any place, vessel, or aircraft,
within the control or jurisdiction of any of the armed forces, or in or
about any shipyard, any manufacturing or industrial plant, or any other place
or institution engaged in work in aid of the prosecution of the war by the
United States, or elsewhere, shall be tried by a general court-martial or
by a military commission and on conviction shall be punished by death.**
place, vessel, or aircraft within the control or jurisdiction of an armed
force of the United States, or a shipyard, manufacturing or industrial plant,
or other place or institution engaged in work in aid of the prosecution
of the war by the United States, or elsewhere;
pretenses;
information;
to the enemy; and
See R.C.M. 103(19).
For a discussion of "enemy," see paragraph
23c(1)(b).
The words "any person" bring within the jurisdiction
of general courts-martial and military commissions all persons of whatever
nationality or status who commit spying.
A person can be a spy only when, acting clandestinely or under false
pretenses, that person obtains or seeks to obtain information with the intent
to convey it to a hostile party. It is not essential that the accused obtain
the information sought or that it be communicated. The offense is complete
with lurking or acting clandestinely or under false pretenses with intent
to accomplish these objects.
It is necessary to prove an intent to convey information to the
enemy. This intent may be inferred from evidence of a deceptive insinuation
of the accused among our forces, but evidence that the person had come within
the lines for a comparatively innocent purpose, as to visit family or to
reach friendly lines by assuming a disguise, is admissible to rebut this
inference.
drivers, whether members of a military organization or civilians, and persons
in ships or aircraft who carry out their missions openly and who have penetrated
enemy lines are not spies because, while they may have resorted to concealment,
they have not acted under false pretenses.
is later captured by the enemy incurs no responsibility for previous acts
of espionage.
clandestinely or under false pretenses, merely reports what is seen or heard
through agents to the enemy may be charged under Article 104 with giving
intelligence to or communicating with the enemy, but may not be charged
under this article as being a spy.
See paragraph 3 of this part and Appendix 12A.
Death.
In that (personal jurisdiction
data), was, (at/on board-location), on or about 20 , a time of war, found (lurking) (acting) as a spy (in)
(about) (in and about) , (a (fortification) (port)
(base) (vessel) (aircraft) ( ) within the (control)(jurisdiction)
(control and jurisdiction) of an armed force of the United States, to wit: ) (a (shipyard) (manufacturing plant) (industrial plant)
( ) engaged in work in aid of the prosecution of the
war by the United States) ( ), for the purpose of
(collecting) (attempting to collect) information in regard to the ((numbers)
(resources) (operations) () of the armed forces
of the United States) ((military production) () of
the United States) (), with intent to impart the
same to the enemy.
(a)(1) **Any person subject to this chapter who, with intent or reason to
believe that it is to be used to the injury of the United States or to the
advantage of a foreign nation, communicates, delivers, or transmits, or
attempts to communicate, deliver, or transmit, to any entity described in
paragraph (2), either directly or indirectly, anything described in paragraph
accused is found guilty of an offense that directly concerns (A) nuclear
weaponry, military spacecraft or satellites, early warning systems, or other
means of defense or retaliation against large scale attack, (B) war plans,
other major weapons system or major element of defense strategy, the accused
shall be punished by death or such other punishment as a court-martial may
direct.**
a foreign government;
**a faction or party or military or naval force within a foreign
country, whether recognized or unrecognized by the United States; or**
of such a government, faction, party, or force.**
book, signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, note, instrument, appliance, or information relating to
the national defense.**
(b)(1) **No person may be sentenced by court-martial to suffer death for
an offense under this section (article) unless-**
of the aggravating factors set out in subsection (c); and**
circumstances are substantially outweighed by any aggravating circumstances,
including the aggravating factors set out under subsection (c).**
evidence introduced on the issue of guilt or innocence;
evidence introduced during the sentencing proceeding; or
all such evidence.
extenuation and mitigation.**
offense under this section (article) only if the members unanimously find,
beyond a reasonable doubt, one or more of the following aggravating factors:**
or treason for which either a sentence of death or imprisonment for life
was authorized by statute.**
a grave risk of substantial damage to the national security.**
a grave risk of death to another person.**
under section 836 of this title (Article 36).**
writing, code book, signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, note, instrument, appliance, or information
relating to the national defense;
any foreign government, or to any faction or party or military or naval
force within a foreign country, whether recognized or unrecognized by the
United States, or to any representative, officer, agent, employee, subject
or citizen thereof, either directly or indirectly; and
matter would be used to the injury of the United States or to the advantage
of a foreign nation.
That the accused did a certain overt act;
That the act was done with the intent to commit the offense of
espionage;
That the act amounted to more than mere preparation; and
That the act apparently tended to bring about the offense of espionage.
That the accused committed espionage or attempted espionage; and
That the offense directly concerned (1) nuclear weaponry, military
spacecraft or satellites, early warning systems, or other means of defense
or retaliation against large scale attack, (2) war plans, (3) communications
intelligence or cryptographic information, or (4) any other major weapons
system or major element of defense strategy.
"Intent or reason to believe" that the information
"is to be used to the injury of the United States or to the advantage
of a foreign nation" means that the accused acted in bad faith and
without lawful authority with respect to information that is not lawfully
accessible to the public.
"Instrument, appliance, or information relating to the national
defense" includes the full range of modern technology and matter that
may be developed in the future, including chemical or biological agents,
computer technology, and other matter related to the national defense.
Capital punishment is authorized if the government alleges and proves
that the offense directly concerned (1) nuclear weaponry, military spacecraft
or satellites, early warning systems, or other means of defense or retaliation
against large scale attack, (2) war plans, (3) communications intelligence
or cryptographic information, or (4) any other major weapons system or major
element of defense strategy. See R.C.M. 1004 concerning
sentencing proceedings in capital cases.
See paragraph 3 of this part and Appendix 12A.
Death or such other punishment as a court-martial may direct. _
See_ R.C.M. 1003.
Any punishment, other than death, that a court-martial may direct. _
See_ R.C.M. 1003.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , with intent or reason to believe it would be
used to the injury of the United States or to the advantage of , a foreign nation, (attempt to) (communicate) (deliver) (transmit) (description of item), (a document) (a writing) (a code
book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a
plan) (a map) (a model) (a note) (an instrument) (an appliance) (information)
relating to the national defense, ((which directly concerned (nuclear weaponry)
(military spacecraft) (military satellites) (early warning systems) ( , a means of defense or retaliation against a large scale
attack) (war plans) (communications intelligence) (cryptographic information)
( , a major weapons system) ( ,
a major element of defense strategy)) to ((a representative
of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen
of)) ((a foreign government) (a faction within a foreign country) (a party
within a foreign country) (a military force within a foreign country) (a
naval force within a foreign country)) (indirectly by ).
**Any person subject to this chapter who, with
intent to deceive, signs any false record, return, regulation, order, or
other official document, knowing it to be false, or makes any other false
official statement knowing it to be false, shall be punished as a court-martial
may direct.**
official statement;
That the document or statement was false in certain particulars;
That the accused knew it to be false at the time of signing it or
making it; and
deceive.
Official documents and official statements include all documents
and statements made in the line of duty.
The rank of any person intended to be deceived is immaterial if
that person was authorized in the execution of a particular duty to require
or receive the statement or document from the accused. The government may
be the victim of this offense.
The false representation must be made with the intent to deceive.
It is not necessary that the false statement be material to the issue inquiry.
If, however, the falsity is in respect to a material matter, it may be considered
as some evidence of the intent to deceive, while immateriality may tend to
show an absence of this intent.
The expectation of material gain is not an element of this offense.
Such expectation or lack of it, however, is circumstantial evidence bearing
on the element of intent to deceive.
The false representation must be one which the accused actually
knew was false. Actual knowledge may be proved by circumstantial evidence.
An honest, although erroneous, belief that a statement made is true, is
a defense.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location), (subject-matter jurisdiction data,
if required), on or about 20 ,
with intent to deceive, (sign an official (record) (return)
(), to wit: ) (make to ,
an official statement, to wit: ), which (record)
(return) (statement) () was (totally false) (false
in that ), and was then known by the said
to be so false.
loss, damage, destruction, or wrongful disposition
**Any person subject to this chapter who, without
proper authority-**
sells or otherwise disposes of;
willfully or through neglect damages, destroys, or loses; or
**willfully or through neglect suffers to be lost, damaged, destroyed,
sold, or wrongfully disposed of, any military property of the United States,
shall be punished as a court-martial may direct.**
(which was a firearm or explosive);
That the sale or disposition was without proper authority;
That the property was military property of the United States; and
That the property was of a certain value.
certain property in a certain way, or lost certain property;
That the property was military property of the United States;
That the damage, destruction, or loss was willfully caused by the
accused or was the result of neglect by the accused; and
certain amount.
wrongfully disposed of.
damaged, destroyed, sold, or wrongfully disposed of;
That the property was military property of the United States;
That the loss, damage, destruction, sale, or wrongful disposition
was suffered by the accused, without proper authority, through a certain
omission of duty by the accused;
That the omission was willful or negligent; and
That the property was of a certain value or the damage was of a
certain amount.
Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, not all government property is military property. An item of government property is not military property unless the item in question meets the definition provided above. It is immaterial whether the property sold, disposed, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. Retail merchandise of service exchange stores is not military property under this article.
or wrongfully disposed of.
"To suffer" means to allow or permit. The willful or
negligent sufferance specified by this article includes: deliberate violation
or intentional disregard of some specific law, regulation, or order; reckless
or unwarranted personal use of the property; causing or allowing it to remain
exposed to the weather, insecurely housed, or not guarded; permitting it
to be consumed, wasted, or injured by other persons; or loaning it to a
person, known to be irresponsible, by whom it is damaged.
In the case of loss, destruction, sale, or wrongful disposition,
the value of the property controls the maximum punishment which may be adjudged.
In the case of damage, the amount of damage controls. As a general rule,
the amount of damage is the estimated or actual cost of repair by the government
agency normally employed in such work, or the cost of replacement, as shown
by government price lists or otherwise, whichever is less.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of,
military property.
Confinement for 6 months, and forfeiture of two-thirds pay per month
for 6 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
be lost, damaged, destroyed, sold, or wrongfully disposed of, military property.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
without proper authority,(sell to ) (dispose of by ) , ((a firearm) (an explosive))
of a value of (about) $ , military property of the
United States.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
without proper authority, ((willfully) (through neglect)) ((damage by ) (destroy by )) (lose)) (of a value of (about) $ ,) military
property of the United States (the amount of said damage being in the sum
of (about) $ ).
wrongfully disposed of.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
without proper authority, (willfully) (through neglect) suffer , ((a firearm) (an explosive)) (of a value of (about) $ ) military property of the United States, to be (lost) (damaged
by ) (destroyed by ) (sold
to ) (wrongfully disposed of by )
(the amount of said damage being in the sum of (about $ ).
States-waste, spoilage, or destruction
**Any person subject to this chapter who willfully
or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys
or damages any property other than military property of the United States
shall be punished as a court-martial may direct.**
real property in a certain manner;
That the property was that of another person; and
That the property was of a certain value.
personal property in a certain manner;
That the property was that of another person; and
That the property was of a certain value or the damage was of a
certain amount.
This portion of Article 109 proscribes willful or reckless waste
or spoliation of the real property of another. The terms "wastes"
and "spoils" as used in this article refer to such wrongful
acts of voluntary destruction of or permanent damage to real property as
burning down buildings, burning piers, tearing down fences, or cutting down
trees. This destruction in punishable whether done willfully, that is intentionally,
or recklessly, that is through a culpable disregard of the foreseeable consequences
of some voluntary act.
This portion of Article 109 proscribes the willful and wrongful
destruction or damage of the personal property of another. To be destroyed,
the property need not be completely demolished or annihilated, but must
be sufficiently injured to be useless for its intended purpose. Damage consists
of any physical injury to the property. To constitute an offense under this
section, the destruction or damage of the property must have been willful
and wrongful. As used in this section "willfully" means intentionally
and "wrongfully" means contrary to law, regulation, lawful order,
or custom. Willfulness may be proved by circumstantial evidence, such as
the manner in which the acts were done.
In the case of destruction, the value of the property destroyed
controls the maximum punishment which may be adjudged. In the case of damage,
the amount of the damage controls. As a general rule, the amount of damage
is the estimated or actual cost of repair by artisans employed in this work
who are available to the community wherein the owner resides, or the replacement
cost, whichever is less. See also paragraph 46c(1)(g).
See paragraph 3 of this part and Appendix 12A.
Wasting, spoiling, destroying, or damaging any property other than
military property of the United States of a value or damage.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
((willfully) recklessly) waste) ((willfully) (recklessly) spoil) (willfully
and wrongfully (destroy) (damage) by ) , (of a value of (about) $ ) (the amount
of said damage being in the sum of (about $ ), the
property of .
hazards or suffers to be hazarded any vessel of the armed forces shall suffer
death or such other punishment as a court-martial may direct.**
suffers to be hazarded any vessel of the armed forces shall be punished as
a court-martial may direct.**
and
or negligently, caused or suffered the vessel to be hazarded.
"Hazard" means to put in danger of loss or injury. Actual
damage to, or loss of, a vessel of the armed forces by collision, stranding,
running upon a shoal or a rock, or by any other cause, is conclusive evidence
that the vessel was hazarded but not of the fact of culpability on the part
of any particular person. "Stranded" means run aground so that
the vessel is fast for a time. If the vessel "touches and goes,"
she is not stranded; if she "touches and sticks," she is. A shoal
is a sand, mud, or gravel bank or bar that makes the water shallow.
As used in this article, "willfully" means intentionally
and "wrongfully" means contrary to law, regulation, lawful order,
or custom.
"Negligence" as used in this article means the failure
to exercise the care, prudence, or attention to duties, which the interests
of the government require a prudent and reasonable person to exercise under
the circumstances. This negligence may consist of the omission to do something
the prudent and reasonable person would have done, or the doing of something
which such a person would not have done under the circumstances. No person
is relieved of culpability who fails to perform such duties as are imposed
by the general responsibilities of that person's grade or rank, or by the
customs of the service for the safety and protection of vessels of the armed
forces, simply because these duties are not specifically enumerated in a
regulation or order. However, a mere error in judgment that a reasonably
able person might have committed under the same circumstances does not constitute
an offense under this article.
"To suffer" means to allow or permit. A ship is willfully
suffered to be hazarded by one who, although not in direct control of the
vessel, knows a danger to be imminent but takes no steps to prevent it,
as by a plotting officer of a ship under way who fails to report to the officer
of the deck a radar target which is observed to be on a collision course
with, and dangerously close to, the ship. A suffering through neglect implies
an omission to take such measures as were appropriate under the circumstances
to prevent a foreseeable danger.
See paragraph 3 of this part and Appendix 12A.
Hazarding or suffering to be hazarded any vessel of the armed forces:
Death or such other punishment as a court-martial may direct.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
In that (personal jurisdiction
data), did, on 20 , while
serving as aboard the in
the vicinity of , willfully and wrongfully (hazard
the said vessel) (suffer the said vessel to be hazarded) by (causing the
said vessel to collide with ) (allowing the said
vessel to run aground) ( ).
In that (personal jurisdiction
data), on 20 , while serving
in command of the , making entrance to (Boston Harbor),
did negligently hazard the said vessel by failing and neglecting to maintain
or cause to be maintained an accurate running plot of the true position
of said vessel while making said approach, as a result of which neglect the
said , at or about , hours
on the day aforesaid, became stranded in the vicinity of (Channel Buoy Number
Three).
In that (personal jurisdiction
data), on 20 , while serving
as navigator of the , cruising on special service
in the Ocean off the coast of ,
notwithstanding the fact that at about midnight, 20
, the northeast point of
Island bore abeam and was about six miles distant, the said ship being then
under way and making a speed of about ten knots, and well knowing the position
of the said ship at the time stated, and that the charts of the locality
were unreliable and the currents thereabouts uncertain, did then and there
negligently hazard the said vessel by failing and neglecting to exercise
proper care and attention in navigating said ship while approaching Island, in that he/she neglected and failed to lay a course
that would carry said ship clear of the last aforesaid island, and to change
the course in due time to avoid disaster; and the said ship, as a result
of said negligence on the part of said , ran upon
a rock off the southwest coast of Island, at about
hours, , 20 ,
in consequence of which the said was lost.
In that (personal jurisdiction
data), on 20 , while serving
as navigator of the and well knowing that at about
sunset of said day the said ship had nearly run her estimated distance from
the position, obtained and plotted by him/her, to
the position of , and well knowing the difficulty
of sighting , from a safe distance after sunset,
did then and there negligently hazard the said vessel by failing and neglecting
to advise his/her commanding officer to lay a safe course for said ship to
the northward before continuing on a westerly course, as it was the duty
of said to do; in consequence of which the said
ship was, at about hours on the day above mentioned,
run upon bank in the Sea,
about latitude degrees, minutes,
north, and longitude degrees, minutes,
west, and seriously injured.
In that (personal jurisdiction
data), while serving as combat intelligence center officer on board the , making passage from Boston to Philadelphia, and having,
between and hours on
, 20 , been duly informed of decreasing
radar ranges and constant radar bearing indicating that the said was upon a collision course approaching a radar target, did then
and there negligently suffer the said vessel to be hazarded by failing and
neglecting to report said collision course with said radar target to the
officer of the deck, as it was his/her duty to do, and he/she, the said , through negligence, did cause the said to collide with the at or about hours on said date, with resultant damage to both vessels.
or vessel
(a) Any person subject to this chapter who-
operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (Article 112a(b)); or
operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct.
(b)(1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person's blood or breath is as follows:
(A) In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of-
(i) the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or
(ii) the blood alcohol content limit specified in paragraph (3).
(B) In the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe.
(2) In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respective State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation.
(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person's blood is 0.10 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath is 0.10 grams of alcohol per 210 liters of breath, as shown by chemical analysis.
(4) In this subsection:
(A) The term "blood alcohol content limit" means the amount of alcohol concentration in a person's blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited.
(B) The term "United States" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term "State" includes each of those jurisdictions.
aircraft, or vessel; and
or vessel, the accused:
did so in a wanton or reckless manner, or
was drunk or impaired, or
the alcohol concentration in the accused's blood or breath equaled or exceeded the applicable limit under subparagraph (b) of paragraph 35a. [NOTE: If injury resulted add the following element]
to injure a person.
See 1 U.S.C. § 4.
See. 1 U.S.C. § 3.
Any contrivance used or designed for transportation in the air.
Operating a vehicle, aircraft, or vessel includes not only driving
or guiding a vehicle, aircraft or vessel while it is in motion, either in
person or through the agency of another, but also setting of its motive
power in action or the manipulation of its controls so as to cause the particular
vehicle, aircraft or vessel to move.
These terms as used in the statute are synonymous. They describe
the present capability and power to dominate, direct or regulate the vehicle,
vessel, or aircraft, either in person or through the agency of another,
regardless of whether such vehicle, aircraft, or vessel is operated. For
example, the intoxicated person seated behind the steering wheel of a vehicle
with the keys of the vehicle in or near the ignition but with the engine
not turned on could be deemed in actual physical control of that vehicle.
However, the person asleep in the back seat with the keys in his or her pocket
would not be deemed in actual physical control. Physical control necessarily
encompasses operation.
"Drunk" and "impaired" mean any intoxication
which is sufficient to impair the rational and full exercise of the mental
or physical faculties. The term drunk is used in relation to intoxication
by alcohol. The term impaired is used in relation to intoxication by a substance
described in Article 112(a), Uniform Code of Military Justice.
The operation or physical control of a vehicle, vessel, or aircraft
is "reckless" when it exhibits a culpable disregard of foreseeable
consequences to others from the act or omission involved. Recklessness is
not determined solely by reason of the happening of an injury, or the invasion
of the rights of another, nor by proof alone of excessive speed or erratic
operation, but all these factors may be admissible and relevant as bearing
upon the ultimate question: whether, under all the circumstances, the accused's
manner of operation or physical control of the vehicle, vessel, or aircraft
was of that heedless nature which made it actually or imminently dangerous
to the occupants, or to the rights or safety of others. It is operating
or physically controlling a vehicle, vessel, or aircraft with such a high
degree of negligence that if death were caused, the accused would have committed
involuntary manslaughter, at least. The nature of the conditions in which
the vehicle, vessel, or aircraft is operated or controlled, the time of day
or night, the proximity and number of other vehicles, vessels, or aircraft
and the condition of the vehicle, vessel, or aircraft, are often matters
of importance in the proof of an offense charged under this article and,
where they are of importance, may properly be alleged.
"Wanton" includes "reckless," but in describing
the operation or physical control of a vehicle, vessel, or aircraft "wanton"
may, in a proper case, connote willfulness, or a disregard of probable consequences,
and thus describe a more aggravated offense.
The accused's drunken or reckless driving must be a proximate cause
of injury for the accused to be guilty of drunken or reckless driving resulting
in personal injury. To be proximate, the accused's actions need not be
the sole cause of the injury, nor must they be the immediate cause of the
injury, that is, the latest in time and space preceding the injury. A contributing
cause is deemed proximate only if it plays a material role in the victim's
injury.
While the same course of conduct may constitute violations of both
subsections (1) and (2) of the Article, e.g., both drunken and reckless
operation or physical control, this article proscribes the conduct described
in both subsections as separate offenses, which may be charged separately.
However, as recklessness is a relative matter, evidence of all the surrounding
circumstances that made the operation dangerous, whether alleged or not,
may be admissible. Thus, on a charge of reckless driving, for example, evidence
of drunkenness might be admissible as establishing one aspect of the recklessness,
and evidence that the vehicle exceeded a safe speed, at a relevant prior
point and time, might be admissible as corroborating other evidence of the
specific recklessness charged. Similarly, on a charge of drunken driving,
relevant evidence of recklessness might have probative value as corroborating
other proof of drunkenness.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 18 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction data), did (at/on board location) (subject matter jurisdiction data, if required), on or about , 20 , (in the motor pool area) (near the Officer's Club) (at the intersection of and ) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) ()] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) ()] [a vessel, to wit: (the aircraft carrier USS ) (the Coast Guard Cutter ) ( )], [while drunk] [while impaired by ] [while the alcohol concentration in his (blood or breath) equaled or exceeded the applicable limit under subparagraph (b) of the text of the statute in paragraph 35 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) (injure )].
**Any person subject to this chapter other than
sentinel or look-out, who is found drunk on duty, shall be punished as a
court-martial may direct.**
That the accused was on a certain duty; and
That the accused was found drunk while on this duty.
See paragraph 35c(6).
"Duty" as used in this article means military duty.
Every duty which an officer or enlisted person may legally be required by
superior authority to execute is necessarily a military duty. Within the
meaning of this article, when in the actual exercise of command, the commander
of a post, or of a command, or of a detachment in the field is constantly
on duty, as is the commanding officer on board a ship. In the case of other
officers or enlisted persons, "on duty" relates to duties or
routine or detail, in garrison, at a station, or in the field, and does not
relate to those periods when, no duty being required of them by orders or
regulations, officers and enlisted persons occupy the status of leisure
known as "off duty" or "on liberty." In a region of
active hostilities, the circumstances are often such that all members of
a command may properly be considered as being continuously on duty within
the meaning of this article. So also, an officer of the day and members of
the guard, or of the watch, are on duty during their entire tour within
the meaning of this article.
It is necessary that the accused be found drunk while actually on
the duty alleged, and the fact the accused became drunk before going on
duty, although material in extenuation, does not affect the question of
guilt. If, however, the accused does not undertake the responsibility or
enter upon the duty at all, the accused's conduct does not fall within the
terms of this article, nor does that of a person who absents himself or
herself from duty and is found drunk while so absent. Included within the
article is drunkenness while on duty of an anticipatory nature such as that
of an aircraft crew ordered to stand by for flight duty, or of an enlisted
person ordered to stand by for guard duty.
If the accused is known by superior authorities to be drunk at the
time a duty is assigned, and the accused is thereafter allowed to assume
that duty anyway, or if the drunkenness results from an accidental over
dosage administered for medicinal purposes, the accused will have a defense
to this offense. But see paragraph 76 (incapacitation for
duty).
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 9 months.
In that (personal jurisdiction
data), was, (at/on board-location), on or about
20 , found drunk while on duty as .
manufactures, distributes, imports into the customs territory of the United
States, exports from the United States, or introduces into an installation,
vessel, vehicle, or aircraft used by or under the control of the armed forces
a substance described in subsection (b) shall be punished as a court-martial
may direct.**
methamphetamine, phencyclidine, barbituric acid, and marijuana, and any
compound or derivative of any such substance.**
schedule of controlled substances prescribed by the President for the purposes
of this article.**
a list prescribed by the President under clause (2) that is listed in Schedules
I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).**
and
That the accused used a controlled substance; and
That the use by the accused was wrongful.
and
installation used by the armed forces or under the control of the armed
forces a certain amount of a controlled substance; and
substance; and
substance with intent to distribute.
amount of a controlled substance;
and
intent to distribute.
from) the United States a certain amount of a controlled substance; and
[Note: When any of the aggravating circumstances listed in
subparagraph e is alleged, it must be listed as an element.]
"Controlled substance" means amphetamine, cocaine,
heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine,
and barbituric acid, including phenobarbital and secobarbital. "Controlled
substance" also means any substance which is included in Schedules
I through V established by the Controlled Substances Act of 1970 (21 U.S.C.
812).
"Possess" means to exercise control of something. Possession
may be direct physical custody like holding an item in one's hand, or it
may be constructive, as in the case of a person who hides an item in a locker
or car to which that person may return to retrieve it. Possession must be
knowing and conscious. Possession inherently includes the power or authority
to preclude control by others. It is possible, however, for more than one
person to possess an item simultaneously, as when several people share control
of an item. An accused may not be convicted of possession of a controlled
substance if the accused did not know that the substance was present under
the accused's control. Awareness of the presence of a controlled substance
may be inferred from circumstantial evidence.
"Distribute" means to deliver to the possession of
another. "Deliver" means the actual, constructive, or attempted
transfer of an item, whether or not there exists an agency relationship.
"Manufacture" means the production, preparation, propagation,
compounding, or processing of a drug or other substance, either directly
or indirectly or by extraction from substances of natural origin, or independently
by means of chemical synthesis or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of such substance or
labeling or relabeling of its container. "Production," as used
in this subparagraph, includes the planting, cultivating, growing, or harvesting
of a drug or other substance.
To be punishable under Article 112a, possession, use, distribution,
introduction, or manufacture of a controlled substance must be wrongful.
Possession, use, distribution, introduction, or manufacture of a controlled
substance is wrongful if it is without legal justification or authorization.
Possession, distribution, introduction, or manufacture of a controlled substance
is not wrongful if such act or acts are: (A) done pursuant to legitimate
law enforcement activities (for example, an informant who receives drugs
as part of an undercover operation is not in wrongful possession); (B) done
by authorized personnel in the performance of medical duties; or (C) without
knowledge of the contraband nature of the substance (for example, a person
who possesses cocaine, but actually believes it to be sugar, is not guilty
of wrongful possession of cocaine). Possession, use, distribution, introduction,
or manufacture of a controlled substance may be inferred to be wrongful
in the absence of evidence to the contrary. The burden of going forward with
evidence with respect to any such exception in any court-martial or other
proceeding under the code shall be upon the person claiming its benefit.
If such an issue is raised by the evidence presented, then the burden of
proof is upon the United States to establish that the use, possession, distribution,
manufacture, or introduction was wrongful.
Intent to distribute may be inferred from circumstantial evidence.
Examples of evidence which may tend to support an inference of intent to
distribute are: possession of a quantity of substance in excess of that
which one would be likely to have for personal use; market value of the substance;
the manner in which the substance is packaged; and that the accused is not
a user of the substance. On the other hand, evidence that the accused is
addicted to or is a heavy user of the substance may tend to negate an inference
of intent to distribute.
When a specific amount of a controlled substance is believed to
have been possessed, distributed, introduced, or manufactured by an accused,
the specific amount should ordinarily be alleged in the specification. It
is not necessary to allege a specific amount, however, and a specification
is sufficient if it alleges that an accused possessed, distributed, introduced,
or manufactured "some," "traces of," or "an
unknown quantity of" a controlled substance.
A "missile launch facility" includes the place from
which missiles are fired and launch control facilities from which the launch
of a missile is initiated or controlled after launch.
"Customs territory of the United States" includes only
the States, the District of Columbia, and Puerto Rico.
"Use" means to inject, ingest, inhale, or otherwise
introduce into the human body, any controlled substance. Knowledge of the
presence of the controlled substance is a required component of use. Knowledge
of the presence of the controlled substance may be inferred from the presence
of the controlled substance in the accused's body or from other circumstantial
evidence. This permissive inference may be legally sufficient to satisfy
the government's burden of proof as to knowledge.
An accused who consciously avoids knowledge of the presence of a
controlled substance or the contraband nature of the substance is subject
to the same criminal liability as one who has actual knowledge.
See paragraph 3 of this part and Appendix 12A.
substance.
(except possession of less than 30 grams or use of marijuana), methamphetamine,
opium, phencyclidine, secobarbital, and Schedule I, II, III controlled substances.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement 5 years.
and Schedule IV and V controlled substances.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
controlled substance with intent to distribute, or wrongful importation
or exportation of a controlled substance.
methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II,
and III controlled substances.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
When any offense under paragraph 37 is committed;
while the accused is on duty as a sentinel or lookout; on board a vessel
or aircraft used by or under the control of the armed forces; in or at a
missile launch facility used by or under the control of the armed forces;
while receiving special pay under 37 U.S.C. § 310; in time of war;
or in a confinement facility used by or under the control of the armed forces,
the maximum period of confinement authorized for such offense shall be increased
by 5 years.
In that (personal jurisdiction
data) did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about , 20 ,
wrongfully (possess) (distribute) (manufacture) (grams)
(ounces) (pounds) () of (a
schedule ( ) controlled substance), (with the
intent to distribute the said controlled substance) (while on duty as a
sentinel or lookout) (while (on board a vessel/aircraft) (in or at a missile
launch facility) used by the armed forces or under the control of the armed
forces, to wit: ) (while receiving special pay under
37 U.S.C. § 310) (during time of war).
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about , 20 ,
wrongfully use (a Schedule
controlled substance) (while on duty as a sentinel or lookout) (while (on
board a vessel/aircraft) (in or at a missile launch facility) used by the
armed forces or under the control of the armed forces, to wit: ) (while receiving special pay under 37 U.S.C. § 310) (during
time of war).
In that (personal jurisdiction
data) did, (at/on board-location) on or about ,
20 , wrongfully introduce (grams)
(ounces) (pounds) ( ) of (a
Schedule ( ) controlled substance) onto a vessel,
aircraft, vehicle, or installation used by the armed forces or under control
of the armed forces, to wit: (with the intent to
distribute the said controlled substance) (while on duty as a sentinel or
lookout) (while receiving special pay under 37 U.S.C. § 310) (during
a time of war).
In that (personal jurisdiction
data) did, (at/on board-location) on or about ,
20 , wrongfully (import) (export) (grams) (ounces) (pounds) ( ) of (a Schedule ( ) controlled substance) (into
the customs territory of) (from) the United States (while on board a vessel/aircraft
used by the armed forces or under the control of the armed forces, to wit: ) (during time of war).
**Any sentinel or look-out who is found drunk
or sleeping upon his post, or leaves it before he is regularly relieved,
shall be punished, if the offense is committed in time of war, by death or
such other punishment as a court-martial may direct, but if the offense is
committed at any other time, by such punishment other than death as a court-martial
may direct.**
That the accused was posted or on post as a sentinel or lookout;
That the accused was found drunk while on post, was found sleeping
while on post, or left post before being regularly relieved.
[Note: If the offense was committed in time of war or while
the accused was receiving special pay under 37 U.S.C. § 310, add the
following element]
was receiving special pay under 37 U.S.C. § 310).
This article defines three kinds of misbehavior committed by sentinels
or lookouts: being found drunk or sleeping upon post, or leaving it before
being regularly relieved. This article does not include an officer or enlisted
person of the guard, or of a ship's watch, not posted or performing the duties
of a sentinel or lookout, nor does it include a person whose duties as a
watchman or attendant do not require constant alertness.
"Post" is the area where the sentinel or lookout is
required to be for the performance of duties. It is not limited by an imaginary
line, but includes, according to orders or circumstances, such surrounding
area as may be necessary for the proper performance of the duties for which
the sentinel or lookout was posted. The offense of leaving post is not committed
when a sentinel or lookout goes an immaterial distance from the post, unless
it is such a distance that the ability to fully perform the duty for which
posted is impaired.
A sentinel or lookout becomes "on post" after having
been given a lawful order to go "on post" as a sentinel or lookout
and being formally or informally posted. The fact that a sentinel or lookout
is not posted in the regular way is not a defense. It is sufficient, for
example, if the sentinel or lookout has taken the post in accordance with
proper instruction, whether or not formally given. A sentinel or lookout
is on post within the meaning of the article not only when at a post physically
defined, as is ordinarily the case in garrison or aboard ship, but also,
for example, when stationed in observation against the approach of an enemy,
or detailed to use any equipment designed to locate friend, foe, or possible
danger, or at a designated place to maintain internal discipline, or to guard
stores, or to guard prisoners while in confinement or at work.
A sentinel or a lookout is a person whose duties include the requirement
to maintain constant alertness, be vigilant, and remain awake, in order to
observe for the possible approach of the enemy, or to guard persons, property,
or a place and to sound the alert, if necessary.
For an explanation of "drunk," see
paragraph 35c(3).
As used in this article, "sleeping" is that condition
of insentience which is sufficient sensibly to impair the full exercise
of the mental and physical faculties of a sentinel or lookout. It is not
necessary to show that the accused was in a wholly comatose condition. The
fact that the accused's sleeping resulted from a physical incapacity caused
by disease or accident is an affirmative defense. See R.C.M.
916(i).
See paragraph 3 of this part and Appendix 12A.
Death or such other punishment as a court-martial may direct.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), on or about 20 (a
time of war) (at/on board-location), (while receiving special pay
under 37 U.S.C. § 310), being (posted) (on post) as a (sentinel) (lookout)
at (warehouse no. 7) (post no. 11) (for radar observation) ( ) (was found (drunk) (sleeping) upon his/her post) (did leave his/her
post before he/she was regularly relieved).
**Any person subject to this chapter who
fights or promotes, or is concerned in or connives at fighting a duel, or
who, having knowledge of a challenge sent or about to be sent, fails to
report the fact promptly to the proper authority, shall be punished as a
court-martial may direct.**
That the accused fought another person with deadly weapons;
That the combat was for private reasons; and
That the combat was by prior agreement.
That the accused promoted a duel between certain persons; and
That the accused did so in a certain manner.
That certain persons intended to and were about to engage in a duel;
That the accused had knowledge of the planned duel; and
That the accused connived at the fighting of the duel in a certain
manner.
sent;
That the accused had knowledge of this challenge; and
That the accused failed to report this fact promptly to proper
authority.
A duel is combat between two persons for private reasons fought
with deadly weapons by prior agreement.
Urging or taunting another to challenge or to accept a challenge
to duel, acting as a second or as carrier of a challenge or acceptance,
or otherwise furthering or contributing to the fighting of a duel are examples
of promoting a duel.
Anyone who has knowledge that steps are being taken or have been
taken toward arranging or fighting a duel and who fails to take reasonable
preventive action thereby connives at the fighting of a duel.
See paragraph 3 of this part and Appendix 12A.
For all Article 114 offenses: dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 1 year.
In that (personal jurisdiction
data) (and ), did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about 20 , fight a duel (with ), using
as weapons therefor (pistols) (swords) ( ).
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
promote a duel between and by
(telling said he/she would be a coward if he/she
failed to challenge said to a duel) (knowingly carrying
from said to said a challenge
to fight a duel).
In that (personal jurisdiction
data), having knowledge that and were about to engage in a duel, did (at/on board-location)
(subject-matter jurisdiction data, if required), on or about 20 , connive at the fighting of said duel
by (failing to take reasonable preventive action) ( ).
In that (personal jurisdiction
data), having knowledge that a challenge to fight a duel (had been sent)
(was about to be sent) by to ,
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 fail to
report that fact promptly to the proper authority.
**Any person subject to this chapter who for the
purpose of avoiding work, duty, or service- **
or **
shall be punished as a court-martial
may direct. **
to, or availability for, the performance of work, duty, or service;
or derangement, or intentionally inflicted injury upon himself or herself;
and
work, duty, or service.
[Note: If the offense was committed in time of war or in a
hostile fire pay zone, add the following element]
pay zone).
The essence of this offense is the design to avoid performance of
any work, duty, or service which may properly or normally be expected of
one in the military service. Whether to avoid all duty, or only a particular
job, it is the purpose to shirk which characterizes the offense. Hence,
the nature or permanency of a self-inflicted injury is not material on the
question of guilt, nor is the seriousness of a physical or mental disability
which is a sham. Evidence of the extent of the self-inflicted injury or
feigned disability may, however, be relevant as a factor indicating the presence
or absence of the purpose.
The injury may be inflicted by nonviolent as well as by violent
means and may be accomplished by any act or omission which produces, prolongs,
or aggravates any sickness or disability. Thus, voluntary starvation which
results in debility is a self-inflicted injury and when done for the purpose
of avoiding work, duty, or service constitutes a violation of this article.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
in a hostile fire pay zone or in time of war.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
time of war.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
In that (personal jurisdiction
data), did, (at/on board-location) (in a hostile fire pay zone) (subject-matter
jurisdiction data, if required) (on or about
20 ) (from about 20
to about 20 ),
(a time of war) for the purpose of avoiding (his/her duty as officer of
the day) (his/her duty as aircraft mechanic) (work in the mess hall) (service
as an enlisted person) () (feign (a headache) (a
sore back) (illness) (mental lapse) (mental derangement)
()) (intentionally injure himself/herself by ).
**Any person subject to this chapter who
causes or participates in any riot or breach of the peace shall be punished
as a court-martial may direct.**
That the accused was a member of an assembly of three or more persons;
That the accused and at least two other members of this group mutually
intended to assist one another against anyone who might oppose them in doing
an act for some private purpose;
unlawfully committed a tumultuous disturbance of the peace in a violent or
turbulent manner; and
or were intended to cause public alarm or terror.
or turbulent nature; and
"Riot" is a tumultuous disturbance of the peace by three
or more persons assembled together in furtherance of a common purpose to
execute some enterprise of a private nature by concerted action against
anyone who might oppose them, committed in such a violent and turbulent manner
as to cause or be calculated to cause public terror. The gravamen of the
offense of riot is terrorization of the public. It is immaterial whether
the act intended was lawful. Furthermore, it is not necessary that the common
purpose be determined before the assembly. It is sufficient if the assembly
begins to execute in a tumultuous manner a common purpose formed after it
assembled.
A "breach of the peace" is an unlawful disturbance of
the peace by an outward demonstration of a violent or turbulent nature.
The acts or conduct contemplated by this article are those which disturb
the public tranquility or impinge upon the peace and good order to which
the community is entitled. Engaging in an affray and unlawful discharge
of firearms in a public street are examples of conduct which may constitute
a breach of the peace. Loud speech and unruly conduct may also constitute
a breach of the peace by the speaker. A speaker may also by guilty of causing
a breach of the peace if the speaker uses language which can reasonably be
expected to produce a violent or turbulent response and a breach of the peace
results. The fact that the words are true or used under provocation is not
a defense, nor is tumultuous conduct excusable because incited by others.
"Community" and "public" include a military
organization, post, camp, ship, aircraft, or station.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Confinement for 6 months and forfeiture of two-thirds pay per month
for 6 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(cause) (participate in) a riot by unlawfully assembling with (and ) (and) (others to the number of about whose names are unknown) for the purpose of (resisting
the police of ) (assaulting passers-by) ( ), and in furtherance of said purpose did (fight with said police)
(assault certain persons, to wit: ) (), to the terror and disturbance of .
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(cause) (participate in) a breach of the peace by (wrongfully engaging in
a fist fight in the dayroom with ) (using the following
provoking language (toward ), to wit: " ," or words to that effect) (wrongfully shouting
and singing in a public place, to wit: ) ().
**Any person subject to this chapter who
uses provoking or reproachful words or gestures towards any other person
subject to this chapter shall be punished as a court-martial may direct.**
person;
That the words or gestures used were provoking or reproachful; and
That the person toward whom the words or gestures were used was
a person subject to the code.
As used in this article, "provoking" and "reproachful"
describe those words or gestures which are used in the presence of the person
to whom they are directed and which a reasonable person would expect to
induce a breach of the peace under the circumstances. These words and gestures
do not include reprimands, censures, reproofs and the like which may properly
be administered in the interests of training, efficiency, or discipline
in the armed forces.
It is not necessary that the accused have knowledge that the person
toward whom the words or gestures are directed is a person subject to the
code.
See paragraph 3 of this part and Appendix 12A.
Confinement for 6 months and forfeiture of two-thirds pay per month
for 6 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully use (provoking) (reproachful) (words, to wit; " :" or words to that effect) (and) (gestures, to wit: ) towards (Sergeant , U.S. Air Force)
( ).
**Any person subject to this chapter who,
without justification or excuse, unlawfully kills a human being, when he-**
has a premeditated design to kill;
intends to kill or inflict great bodily harm;
**is engaged in an act that is inherently dangerous to another and
evinces a wanton disregard of human life; or **
[Note: This statute was amended by Public Law 112-81 (FY12 NDAA), effective 28 June 2012, to reflect the modified names of sexual offenses in Articles 120 and 120b.]
That a certain named or described person is dead;
That the death resulted from the act or omission of the accused;
That the killing was unlawful; and
That, at the time of the killing, the accused had a premeditated
design to kill.
That a certain named or described person is dead;
That the death resulted from the act or omission of the accused;
That the killing was unlawful; and
That, at the time of the killing, the accused had the intent to
kill or inflict great bodily harm upon a person.
That a certain named or described person is dead;
That the death resulted from the intentional act of the accused;
That this act was inherently dangerous to another and showed a wanton
disregard for human life;
consequence of the act; and
That a certain named or described person is dead;
That the death resulted from the act or omission of the accused;
That the killing was unlawful; and
That, at the time of the killing, the accused was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson.
Killing a human being is unlawful when done without justification
or excuse. See R.C.M. 916. Whether an unlawful killing constitutes
murder or a lesser offense depends upon the circumstances. The offense is
committed at the place of the act or omission although the victim may have
died elsewhere. Whether death occurs at the time of the accused's act or
omission, or at some time thereafter, it must have followed from an injury
received by the victim which resulted from the act or omission.
A murder is not premeditated unless the thought of taking life was
consciously conceived and the act or omission by which it was taken was
intended. Premeditated murder is murder committed after the formation of
a specific intent to kill someone and consideration of the act intended.
It is not necessary that the intention to kill have been entertained for
any particular or considerable length of time. When a fixed purpose to kill
has been deliberately formed, it is immaterial how soon afterwards it is
put into execution. The existence of premeditation may be inferred from the
circumstances.
When an accused with a premeditated design attempted to unlawfully
kill a certain person, but, by mistake or inadvertence, killed another person,
the accused is still criminally responsible for a premeditated murder, because
the premeditated design to kill is transferred from the intended victim to
the actual victim.
Voluntary intoxication (see R.C.M.
916(1)(2)) not amounting to legal insanity may reduce premeditated
murder (Article 118(1)) to unpremeditated murder (Article 118(2) or (3))
but it does not reduce either premeditated murder or unpremeditated murder
to manslaughter (Article 119) or any other lesser offense.
An unlawful killing without premeditation is also murder when the
accused had either an intent to kill or inflict great bodily harm. It may
be inferred that a person intends the natural and probable consequences
of an act purposely done. Hence, if a person does an intentional act likely
to result in death or great bodily injury, it may be inferred that death
or great bodily injury was intended. The intent need not be directed toward
the person killed, or exist for any particular time before commission of
the act, or have previously existed at all. It is sufficient that it existed
at the time of the act or omission (except if death is inflicted in the
heat of a sudden passion caused by adequate provocation- _see
_ paragraph 44). For example, a person committing housebreaking who
strikes and kills the householder attempting to prevent flight can be guilty
of murder even if the householder was not seen until the moment before striking
the fatal blow.
"Great bodily harm" means serious injury; it does not
include minor injuries such as a black eye or a bloody nose, but it does
include fractured or dislocated bones, deep cuts, torn members of the body,
serious damage to internal organs, and other serious bodily injuries. It
is synonymous with the term "grievous bodily harm."
Voluntary intoxication not amounting to legal insanity does not
reduce unpremeditated murder to manslaughter (Article 119) or any other
lesser offense.
Intentionally engaging in an act inherently dangerous to another-although
without an intent to cause the death of or great bodily harm to any particular
person, or even with a wish that death will not be caused-may also
constitute murder if the act shows wanton disregard of human life. Such disregard
is characterized by heedlessness of the probable consequences of the act
or omission, or indifference to the likelihood of death or great bodily
harm. Examples include throwing a live grenade toward another in jest or
flying an aircraft very low over one or more persons to cause alarm.
The accused must know that death or great bodily harm was a probable
consequence of the inherently dangerous act. Such knowledge may be proved
by circumstantial evidence.
The commission or attempted commission of any of the offenses listed
in Article 118(4) is likely to result in homicide, and when an unlawful
killing occurs as a consequence of the perpetration or attempted perpetration
of one of these offenses, the killing is murder. Under these circumstances
it is not a defense that the killing was unintended or accidental.
The perpetration or attempted perpetration of the burglary, forcible sodomy,
rape, robbery, or aggravated arson may be charged separately from the homicide.
See paragraph 3 of this part and Appendix 12A.
for life with eligibility for parole.
a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(with premeditation) (while (perpetrating) (attempting to perpetrate)
) murder by means of (shooting
him/her with a rifle) ( ).
or inflict great bodily harm, unlawfully kills a human being in the heat
of sudden passion caused by adequate provocation is guilty of voluntary
manslaughter and shall be punished as a court-martial may direct.**
or inflict great bodily harm, unlawfully kills a human being-**
by culpable negligence; or
**while perpetrating or attempting to perpetrate an offense, other
than those named in clause (4) of section 918 of this title (article 118),
directly affecting the person;
is guilty of involuntary manslaughter and
shall be punished as a court-martial may direct.**
That a certain named or described person is dead;
That the death resulted from the act or omission of the accused;
That the killing was unlawful; and
That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed.
[Note: Add the following if applicable]
That a certain named or described person is dead;
That the death resulted from the act or omission of the accused;
That the killing was unlawful; and
That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, forcible sodomy, rape, robbery, or aggravated arson.
[Note: Add the following if applicable]
An unlawful killing, although done with an intent to kill or inflict
great bodily harm, is not murder but voluntary manslaughter if committed
in the heat of sudden passion caused by adequate provocation. Heat of passion
may result from fear or rage. A person may be provoked to such an extent
that in the heat of sudden passion caused by the provocation, although not
in necessary defense of life or to prevent bodily harm, a fatal blow may
be struck before self-control has returned. Although adequate provocation
does not excuse the homicide, it does preclude conviction of murder.
The provocation must be adequate to excite uncontrollable passion
in a reasonable person, and the act of killing must be committed under and
because of the passion. However, the provocation must not be sought or induced
as an excuse for killing or doing harm. If, judged by the standard of a reasonable
person, sufficient cooling time elapses between the provocation and the killing,
the offense is murder, even if the accused's passion persists. Examples
of acts which may, depending on the circumstances, constitute adequate provocation
are the unlawful infliction of great bodily harm, unlawful imprisonment,
and the sight by one spouse of an act of adultery committed by the other
spouse. Insulting or abusive words or gestures, a slight blow with the hand
or fist, and trespass or other injury to property are not, standing alone,
adequate provocation.
The maximum punishment is increased when voluntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.
Culpable negligence is a degree of carelessness greater than simple
negligence. It is a negligent act or omission accompanied by a culpable
disregard for the foreseeable consequences to others of that act or omission.
Thus, the basis of a charge of involuntary manslaughter may be a negligent
act or omission which, when viewed in the light of human experience, might
foreseeably result in the death of another, even though death would not
necessarily be a natural and probable consequence of the act or omission.
Acts which may amount to culpable negligence include negligently conducting
target practice so that the bullets go in the direction of an inhabited
house within range; pointing a pistol in jest at another and pulling the
trigger, believing, but without taking reasonable precautions to ascertain,
that it would not be dangerous; and carelessly leaving poisons or dangerous
drugs where they may endanger life.
When there is no legal duty to act there can be no neglect. Thus,
when a stranger makes no effort to save a drowning person, or a person allows
a beggar to freeze or starve to death, no crime is committed.
An "offense directly affecting the person" means one
affecting some particular person as distinguished from an offense affecting
society in general. Among offenses directly affecting the person are the
various types of assault, battery, false imprisonment, voluntary engagement
in an affray, and maiming.
The maximum punishment is increased when involuntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
In that (personal jurisdiction
data), did, (at/on board - location) (subject matter jurisdiction data, if required), on or about 20 , willfully and unlawfully kill , (a child under 16 years of age) by him/her (in) (on) the with a .
In that (personal jurisdiction data), did, (at/on board location) (subject matter jurisdiction data, if required), on or about (by culpable negligence) (while (perpetrating) (attempting to perpetrate) an offense directly affecting the person of , to wit: (maiming) (a battery) ( )) unlawfully kill (a child under 16 years of age) by him/her (in)(on) the with a .
(a)(1) **Any person subject to this chapter who engages in conduct that violates
any of the provisions of law listed in subsection (b) and thereby causes the
death of, or bodily injury (as defined in section 1365 of title 18) to, a
child, who is in utero at the time the conduct takes place, is guilty of
a separate offense under this section and shall, upon conviction, be punished
by such punishment, other than death, as a court-martial may direct, which
shall be consistent with the punishments prescribed by the President for that
conduct had that injury or death occurred to the unborn child's mother.**
had knowledge that the victim of the underlying offense was pregnant; or **
the unborn child.**
or attempts to kill the unborn child, that person shall, instead of being
punished under paragraph (1), be punished as provided under sections 880,
918, and 919(a) of this title (articles 80, 118, and 119(a)) for intentionally
killing or attempting to kill a human being.**
not be imposed for an offense under this section.**
919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 118, 119(a),
119(b)(2), 120(a), 122, 124, 126, and 128).**
of any person authorized by state or federal law to perform abortions for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
**of any person for any medical treatment of the pregnant woman or
her unborn child; or**
in utero, and the term "child in utero" or "child, who
is in utero" means a member of the species homo sapiens, at any stage
of development, who is carried in the womb.**
That the accused was engaged in the [(murder (article 118)), (voluntary manslaughter (article 119(a))), (involuntary manslaughter (article 119(b)(2))), (rape (article 120)), (robbery (article 122)), (maiming (article 124)), (assault (article 128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman;
That the woman was then pregnant; and
That the accused thereby caused bodily injury to the unborn child of that woman.
(2) Killing an unborn child.
That the accused was engaged in the [(murder (article 118)), (voluntary manslaughter (article 119(a))), (involuntary manslaughter (article 119(b)(2))), (rape (article 120)), (robbery (article 122)), (maiming (article 124)), (assault (article 128)), of ] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] a woman;
That the woman was then pregnant; and
That the accused thereby caused the death of the unborn child of that woman.
(3) Attempting to kill an unborn child.
That the accused was engaged in the [(murder (article 118)), (voluntary manslaughter (article 119(a))), (involuntary manslaughter (article 119(b)(2))), (rape (article 120)), (robbery (article 122)), (maiming (article 124)), (assault (article 128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman;
That the woman was then pregnant; and
That the accused thereby intended and attempted to kill the unborn child of that woman.
(4) Intentionally killing an unborn child.
That the accused was engaged in the [(murder (article 118)), (voluntary manslaughter (article 119(a))), (involuntary manslaughter (article 119(b)(2))), (rape (article 120)), (robbery (article 122)), (maiming (article 124)), (assault (article 128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or property (known to be occupied by) (belonging to))] a woman;
That the woman was then pregnant; and
That the accused thereby intentionally killed the unborn child of that woman.
c. Explanation.
(1) Nature of offense.
This article makes it a separate, punishable crime to cause the death of or bodily injury to an unborn child while engaged in arson (article 126, UCMJ); murder (article 118, UCMJ); voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter (article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery (article 122, UCMJ); maiming (article 124, UCMJ); or assault (article 128, UCMJ) against a pregnant woman. For all underlying offenses, except arson, this article requires that the victim of the underlying offense be the pregnant mother. For purposes of arson, the pregnant mother must have some nexus to the arson such that she sustained some "bodily injury" due to the arson. For the purposes of this article the term "woman" means a female of any age. This article does not permit the prosecution of any-
person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
person for any medical treatment of the pregnant woman or her unborn child; or
woman with respect to her unborn child.
the person engaging in the conduct (the accused) had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
the accused intended to cause the death of, or bodily injury to, the unborn child.
(4) Bodily injury.
For the purpose of this offense, the term "bodily injury" is that which is provided by section 1365 of title 18, to wit: a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.
(5) Unborn child.
"Unborn child" means a child in utero or a member of the species homo sapiens who is carried in the womb, at any stage of development, from conception to birth.
d. Lesser included offenses.
See paragraph 3 of this part and Appendix 12A.
e. Maximum punishment.
The maximum punishment for (1) Injuring an unborn child; (2) Killing an unborn child; (3) Attempting to kill an unborn child; or (4) Intentionally killing an unborn child is such punishment, other than death, as a court-martial may direct, but shall be consistent with the punishment had the bodily injury, death, attempt to kill, or intentional killing occurred to the unborn child's mother.
f. Sample specifications.
(1) Injuring an unborn child.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , cause bodily injury to the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
(2) Killing an unborn child.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , cause the death of the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
(3) Attempting to kill an unborn child.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , attempt to kill the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
(4) Intentionally killing an unborn child.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20 , intentionally kill the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) (assault) of] [(burning) (setting afire) of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong to))] that woman.
[Note: This statute applies to offenses committed on or after 28 June 2012. Previous versions of Article 120 are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
using unlawful force against that other person;
using force causing or likely to cause death or grievous bodily harm to any person;
threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
first rendering that other person unconscious; or
**administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;
is guilty of rape and shall be punished as a court-martial may direct.**
threatening or placing that other person in fear;
causing bodily harm to that other person;
making a fraudulent representation that the sexual act serves a professional purpose; or
inducing a belief by any artifice, pretense, or concealment that the person is another person;
commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to-
impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
**a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;
is guilty of sexual assault and shall be punished as a court-martial may direct.**
Aggravated Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.
Abusive Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.
Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.
Defenses. An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial. Marriage is not a defense for any conduct in issue in any prosecution under this section.
Definitions. In this section:
contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
the penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
**any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.
Touching may be accomplished by any part of the body.**
Bodily harm. The term 'bodily harm' means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.
Grievous bodily harm. The term 'grievous bodily harm' means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose.
Force. The term 'force' means-
the use of a weapon;
the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
inflicting physical harm sufficient to coerce or compel submission by the victim.
Unlawful Force. The term 'unlawful force' means an act of force done without legal justification or excuse.
Threatening or placing that other person in fear. The term 'threatening or placing that other person in fear' means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
Consent.
The term 'consent' means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person's actions.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so with unlawful force.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by first rendering that other person unconscious.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;
That the accused did so with unlawful force; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;
That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;
That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(d) By first rendering that other person unconscious
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;
That the accused did so by first rendering that other person unconscious; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(e) By administering a drug, intoxicant, or other similar substance
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;
That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by threatening or placing that other person in fear.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by causing bodily harm to that other person.
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by making a fraudulent representation that the sexual act served a professional purpose.
(d) By false pretense
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis; and
That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person.
(e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by the penis;
That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and
That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring.
(f) When the other person is incapable of consenting
That the accused committed a sexual act upon another person by causing penetration, however slight,of the vulva, anus, or mouth by the penis;
That the other person was incapable of consenting to the sexual act due to:
Impairment by any drug, intoxicant or other similar substance; or
A mental disease or defect, or physical disability; and
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the accused did so by threatening or placing that other person in fear; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(b) By causing bodily harm
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the accused did so by causing bodily harm to that other person; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(c) By fraudulent representation
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(d) By false pretense
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;
That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring.
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(f) When the other person is incapable of consenting
That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;
That the other person was incapable of consenting to the sexual act due to:
Impairment by any drug, intoxicant or other similar substance; or
A mental disease or defect, or physical disability;
That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so with unlawful force; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and
That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by first rendering that other person unconscious; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so with unlawful force; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by first rendering that other person unconscious; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by administering to that other person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by threatening or placing that other person in fear; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by causing bodily harm to that other person; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by making a fraudulent representation that the sexual act served a professional purpose; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;
That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;
That the other person was incapable of consenting to the sexual act due to:
Impairment by any drug, intoxicant or other similar substance; or
A mental disease or defect, or physical disability;
That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and
That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by threatening or placing that other person in fear; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
(b) By causing bodily harm
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by causing bodily harm to that other person; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
(c) By fraudulent representation
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
(d) By false pretense
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
(e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;
That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
(f) When the other person is incapable of consenting
That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;
That the other person was incapable of consenting to the sexual act due to:
Impairment by any drug, intoxicant, or other similar substance; or
A mental disease or defect, or physical disability;
That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and
That the accused did so with intent to arouse or gratify the sexual desire of any person.
Sexual offenses have been separated into three statutes: adults (120), children (120b), and other offenses (120c).
The terms are defined in Paragraph 45.a.(g).
See Mil. R. Evid. 412 concerning rules of evidence relating to the character of the victim of an alleged sexual offense. See Mil. R. Evid. 514 concerning rules of evidence relating to privileged communications between the victim and victim advocate.
(4) Consent as an element.
Lack of consent is not an element of any offense under this paragraph unless expressly stated. Consent may be relevant for other purposes.
See paragraph 3 of this part and Appendix 12A.
Forfeiture of all pay and allowances and confinement for life without eligibility for parole. Mandatory minimum - Dismissal or dishonorable discharge.
Forfeiture of all pay and allowances, and confinement for 30 years. Mandatory minimum - Dismissal or dishonorable discharge.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Abusive sexual contact.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.
##### (a) By force.
In that (personal jurisdiction data), did (at/on board location), on or about _____, commit a sexual act upon ____________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _________'s penis, by using unlawful force.
###### (b) By force causing or likely to cause death or grievous bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ___________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _______'s penis, by using force likely to cause death or grievous bodily harm to _________, to wit: _____________.
####### (d) By first rendering that other person unconscious.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________ by causing penetration of __________'s (vulva) (anus) (mouth) with ________'s penis, by first rendering __________ unconscious by __________________.
######## (e) By administering a drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ___________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _________'s penis, by administering to ____________ (by force) (by threat of force) (without the knowledge or permission of ___________) a (drug) (intoxicant) (list other similar substance), to wit: ________, thereby substantially impairing the ability of ___________ to appraise or control his/her conduct.
##### (a) By force.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object) by using unlawful force, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.
###### (b) By force causing or likely to cause death or grievous bodily injury.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of __________ with (list body part or object) by using force likely to cause death or grievous bodily harm to ________, to wit: _________________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.
####### (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.
In that (personal jurisdiction data), did (at/on board location), on or about ___ 20_, commit a sexual act upon _______, by penetrating the (vulva) (anus) (mouth) of __________ with (list body part or object) by (threatening ______) (placing ______ in fear) that __________ would be subjected to (death) (grievous bodily harm) (kidnapping), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.
######## (d) By first rendering that other person unconscious.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon _______, by penetrating the (vulva) (anus) (mouth) of ________ with (list body part or object) by first rendering ________ unconscious, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.
######### (e) By administering a drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object) by administering to ____________ (by force) (by threat of force) (without the knowledge or permission of ___________) a (drug) (intoxicant) (list other similar substance), to wit: ________, thereby substantially impairing the ability of ___________ to appraise or control his/her conduct, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.
##### (a) By threatening or placing that other person in fear.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis, by (threatening _________) (placing _________ in fear).
###### (b) By causing bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon ______, by causing penetration of __________'s (vulva) (anus) (mouth) with _______'s penis by causing bodily harm to _________, to wit: _________.
####### (c) By fraudulent representation.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis by making a fraudulent representation that the sexual act served a professional purpose, to wit: __________.
######## (d) By false pretense.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person.
######### (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ________, by causing penetration of __________'s (vulva) (anus) (mouth) with ________'s penis when he/she knew or reasonably should have known that ________ was (asleep) (unconscious) (unaware the sexual act was occurring due to _________).
########## (f) When the other person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ________, by causing penetration of __________'s (vulva) (anus) (mouth) with _______'s penis, when _________ was incapable of consenting to the sexual act because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by the said accused.
##### (a) By threatening or placing that other person in fear.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of ______________ with (list body part or object), by (threatening __________) (placing __________ in fear), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
###### (b) By causing bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of ______________ with (list body part or object), by causing bodily harm to __________, to wit:_________ with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
####### (c) By fraudulent representation.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of ______________ with (list body part or object), by making a fraudulent representation that the sexual act served a professional purpose, to wit: __________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
######## (d) By false pretense.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of _____________ with (list body part or object), by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
######### (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of _____________ with (list body part or object), when he/she knew or reasonably should have known that _________ was (asleep) (unconscious) (unaware the sexual act was occurring due to ________), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ___________.
########## (f) When the other person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a sexual act upon _________, by penetrating the (vulva) (anus) ( mouth) of ______________ with (list body part or object), when ____________ was incapable of consenting to the sexual act because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by the said accused, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) _____.
##### (a) By force.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause _______ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______, by using unlawful force, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
###### (b) By force causing or likely to cause death or grievous bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause _________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______, by using force likely to cause death or grievous bodily harm to _________, to wit: _________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
####### (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause _________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _____, by (threatening ________) (placing ______ in fear) that _________ would be subjected to (death) (grievous bodily harm) (kidnapping), with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
######## (d) By first rendering that other person unconscious.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______, by rendering _______ unconscious by __________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) _______.
######### (e) By administering a drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause __________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _________, by administering to ____________ (by force) (by threat of force) (without the knowledge or permission of ____) a (drug) (intoxicant) () thereby substantially impairing the ability of ________ to appraise or control his/her conduct, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
##### (a) By force.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] (name of body part) of ______, by using unlawful force, with an intent to (arouse) (gratify the sexual desire of) __________.
###### (b) By force causing or likely to cause death or grievous bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause _________ to touch)] [(directly) (through the clothing)] (name of body part) of ______, by using force likely to cause death or grievous bodily harm to ________, to wit: _____________, with an intent to (arouse) (gratify the sexual desire of) __________.
####### (c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, [(touch) (cause ________ to touch)] [(directly) (through the clothing)] (name of body part) of ______, by (threatening _________) (placing _______ in fear) that _____________ would be subjected to (death) (grievous bodily harm) (kidnapping), with an intent to (arouse) (gratify the sexual desire of) __________.
######## (d) By first rendering that other person unconscious.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause _________ to touch)] [(directly) (through the clothing)] (name of body part) of ______, by rendering __________ unconscious by ________________, with an intent to (arouse) (gratify the sexual desire of) __________.
######### (e) By administering a drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause _________ to touch)] [(directly) (through the clothing)] (name of body part) of _____, by administering to _________ (by force) (by threat of force) (without the knowledge or permission of __________) a (drug) (intoxicant) (____) and thereby substantially impairing the ability of ___________ to appraise or control his/her conduct, with an intent to (arouse) (gratify the sexual desire of) __________.
##### (a) By threatening or placing that other person in fear.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______ by (threatening ________) (placing _________ in fear), with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
###### (b) By causing bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______ by causing bodily harm to __________, to wit: ___________________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
####### (c) By fraudulent representation.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _________ by making a fraudulent representation that the sexual contact served a professional purpose, to wit: __________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
######## (d) By false pretense.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _________ by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
######### (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring.
In that (personal jurisdiction data), did (at/on board location), on or about ___ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of ______ when he/she knew or reasonably should have known that _______ was (asleep) (unconscious) (unaware the sexual contact was occurring due to _________), with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
########## (f) When that person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _____ when _________ was incapable of consenting to the sexual contact because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)] and this condition was known or reasonably should have been known by ___________, with an intent to (abuse) (humiliate) (degrade) (arouse) (gratify the sexual desire of) __________.
##### (a) By threatening or placing that other person in fear.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ by (threatening _________) (placing __________ in fear), with an intent to (arouse) (gratify the sexual desire of) _________.
###### (b) By causing bodily harm.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ by causing bodily harm to __________, to wit: _____________, with an intent to (arouse) (gratify the sexual desire of) __________.
####### (c) By fraudulent representation.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ by making a fraudulent representation that the sexual contact served a professional purpose, to wit: __________, with an intent to (arouse) (gratify the sexual desire of) __________.
######## (d) By false pretense.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person, with an intent to (arouse) (gratify the sexual desire of) __________.
######### (e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ when he/she knew or reasonably should have known that _________ was (asleep) (unconscious) (unaware the sexual contact was occurring due to _________), with an intent to (arouse) (gratify the sexual desire of) __________.
########## (f) When that person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, [(touch) (cause another person to touch)] [(directly) (through the clothing)] the (name of body part) of ______ when ____________ was incapable of consenting to the sexual contact because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ( )] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by _____________, with an intent to (arouse) (gratify the sexual desire of) __________.
who wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family;
who has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; and
**whose acts induce reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself or to a member of his or her immediate family;
is guilty of stalking and shall be punished as a court-martial may direct.**
a repeated maintenance of visual or physical proximity to a specific person; or
a repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of such threats, directed at or towards a specific person.
** The term "repeated," with respect to conduct, means two or more occasions of such conduct.**
** The term "immediate family," in the case of a specific person, means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who within the six months preceding the commencement of the course of conduct regularly resided in the household of the person.**
That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm to himself or herself or a member of his or her immediate family;
That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm to himself or herself or a member of his or her immediate family; and
That the accused's acts induced reasonable fear in the specific person of death or bodily harm to himself or herself or to a member of his or her immediate family.
See Paragraph 54c(1)(a) for an explanation of "bodily harm".
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
In that (personal jurisdiction data), who (knew)(should have known) that would be placed in reasonable fear of (death)(bodily harm) to (himself) (herself)
( , a member of his or her immediate family) did (at/on board-location), (subject-matter jurisdiction data, if required), (on or about 20 )(from about
to about 20 ), wrongfully engage in a course of conduct directed at , to wit: thereby inducing in , a reasonable fear of (death)(bodily harm) to (himself)(herself) ( , a member of his or her immediate family).
[**Note: This statute applies to offenses committed on or after 28 June 2012. Article 120b is a new statute designed to address only child sexual offenses. Previous versions of child sexual offenses are located as follows: for offenses committed on or before 30 September 2007, see Appen- dix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]**
**
using force against any person;
threatening or placing that child in fear;
rendering that child unconscious; or
**administering to that child a drug, intoxicant, or other similar substance;
is guilty of rape of a child and shall be punished as a court-martial may direct.**
Sexual Assault of a Child. Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.
Sexual Abuse of a Child. Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.
Age of Child.
Under 12 years. In a prosecution under this section, it need not be proven that the accused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense that the accused reasonably believed that the child had attained the age of 12 years.
Under 16 years. In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.
Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.
Marriage. In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is a defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused.
Consent. Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.
Definitions. In this section:
Sexual act and sexual contact. The terms 'sexual act' and 'sexual contact' have the meanings given those terms in section 920(g) of this title (article 120(g)).
Force. The term 'force' means-
the use of a weapon;
the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or
**inflicting physical harm.
In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.**
Threatening or placing that child in fear. The term 'threatening or placing that child in fear' means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.
Child. The term 'child' means any person who has not attained the age of 16 years.
**Lewd act. The term 'lewd act' means-
**
any sexual contact with a child;
intentionally exposing one's genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;
intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
##### (a) Rape of a child who has not attained the age of 12.
(i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; and
(ii) That at the time of the sexual act the child had not attained the age of 12 years.
##### (b) Rape by force of a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth; and
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years, and
(iii) That the accused did so by using force against that child or any other person.
##### (c) Rape by threatening or placing in fear a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by threatening the child or another person or placing that child in fear.
##### (d) Rape by rendering unconscious a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by rendering that child unconscious.
##### (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child causing penetration, however slight, by the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so by administering to that child a drug, intoxicant, or other similar substance.
#### (2) Rape of a child involving penetration of vulva or anus or mouth by any part of the body or any object.
##### (a) Rape of a child who has not attained the age of 12.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva, anus, or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had not attained the age of 12 years; and
(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
##### (b) Rape by force of a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva, anus, or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years;
(iii) That the accused did so by using force against that child or any other person; and
(iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
##### (c) Rape by threatening or placing in fear a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years;
(iii) That the accused did so by threatening the child or another person or placing that child in fear; and
(iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
##### (d) Rape by rendering unconscious a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years;
(iii) That the accused did so by rendering that child unconscious; and
(iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
##### (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years;
(iii) That the accused did so by administering to that child a drug, intoxicant, or other similar substance; and
(iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
#### (3) Sexual assault of a child.
##### (a) Sexual assault of a child who has attained the age of 12 involving contact between penis and vulva or anus or mouth.
(i) That the accused committed a sexual act upon a child causing contact between penis and vulva or anus or mouth; and
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years.
##### (b) Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object.
(i) That the accused committed a sexual act upon a child by causing penetration, however slight, of the vulva or anus or mouth of the child by any part of the body or by any object;
(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
#### (4) Sexual abuse of a child.
##### (a) Sexual abuse of a child by sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.
(i) That the accused committed sexual contact upon a child by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person; and
(ii) hat the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
##### (b) Sexual abuse of a child by sexual contact involving the touching of any body part.
(i) That the accused committed sexual contact upon a child by touching, or causing another person to touch, either directly or through the clothing, any body part of any person; and
(ii) That the accused did so with intent to arouse or gratify the sexual desire of any person.
##### (c) Sexual abuse of a child by indecent exposure.
(i) That the accused intentionally exposed his or her genitalia, anus, buttocks, or female areola or nipple to a child by any means; and
(ii) That the accused did so with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
##### (d) Sexual abuse of a child by indecent communication.
(i) That the accused intentionally communicated indecent language to a child by any means; and
(ii) That the accused did so with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
##### (e) Sexual abuse of a child by indecent conduct.
(i) That the accused engaged in indecent conduct, intentionally done with or in the presence of a child; and
(ii) That the indecent conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
#### (1) In general.
Sexual offenses have been separated into three statutes: adults (120), children (120b), and other offenses (120c).
#### (2) Definitions.
Terms not defined in this paragraph are defined in paragraph 45b.a.(h), supra.
See paragraph 3 of this part and Appendix 12A.
#### (1) Rape of a child.
Forfeiture of all pay and allowances, and confinement for life without eligibility for parole. Mandatory minimum - Dismissal or dishonorable discharge.
#### (2) Sexual assault of a child.
Forfeiture of all pay and allowances, and confinement for 30 years. Mandatory minimum - Dismissal or dishonorable discharge.
#### (3) Sexual abuse of a child.
##### (a) Cases involving sexual contact.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
##### (b) Other cases.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
#### (1) Rape of a child involving contact between penis and vulva or anus or mouth.
##### (a) Rape of a child who has not attained the age of 12.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, commit a sexual act upon _________, a child who had not attained the age of 12 years, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis.
##### (b) Rape by force of a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis, by using force against ________, to wit: ______________.
##### (c) Rape by threatening or placing in fear a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetration of _________'s (vulva) (anus) (mouth) with _______'s penis by (threatening ______) (placing _______ in fear).
##### (d) Rape by rendering unconscious of a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _______, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetration of ________'s (vulva) (anus) (mouth) with _________'s penis by rendering __________ unconscious by ___________________.
##### (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetration of __________'s (vulva) (anus) (mouth) with ________'s penis by administering to ____________ a (drug) (intoxicant) (____), to wit: _____________.
#### (2) Rape of a child involving penetration of the vulva or anus or mouth by any part of the body or any object.
##### (a) Rape of a child who has not attained the age of 12.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon ________, a child who had not attained the age of 12 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
##### (b) Rape by force of a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), by using force against ________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
##### (c) Rape by threatening or placing in fear a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), by (threatening __________) (placing _______ in fear), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
##### (d) Rape by rendering unconscious of a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), by rendering __________ unconscious, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
##### (e) Rape by administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), by administering to ____________ a (drug) (intoxicant) (____), to wit: __________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
#### (3) Sexual assault of a child.
##### (a) Sexual assault of a child who has attained the age of 12 years involving contact between penis and vulva or anus or mouth.
In that (personal jurisdiction data), did (at/on board location), on or about _____ 20_, commit a sexual act upon ______, a child who had attained the age of 12 years but had not attained the age of 16 years, by causing penetration of ___________'s (vulva) (anus) (mouth) with _________'s penis.
##### (b) Sexual assault of a child who has attained the age of 12 years involving penetration of vulva or anus or mouth by any part of the body or any object.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a sexual act upon _________, a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
#### (4) Sexual abuse of a child.
##### (a) Sexual abuse of a child involving sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a lewd act upon _________, a child who had not attained the age of 16 years, by intentionally [(touching) (causing _________ to touch)] [(directly) (through the clothing)] the (genitalia) (anus) (groin) (breast) (inner thigh) (buttocks) of _______, with an intent to (abuse) (humiliate) (degrade) __________.
###### (b) Sexual abuse of a child involving sexual contact involving the touching of any body part of any person.
In that (personal jurisdiction data), did (at/on board location), on or about ______ 20_, commit a lewd act upon _________, a child who had not attained the age of 16 years, by intentionally exposing [his (genitalia) (anus) (buttocks)] [her (genitalia) (anus) (buttocks) (areola) (nipple)] to ___________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
###### (c) Sexual abuse of a child involving indecent exposure.
In that (personal jurisdiction data), did (at/on board location), on or about ____ 20_, commit a lewd act upon ______, a child who had not attained the age of 16 years, by intentionally [(touching) (causing _________ to touch)] [(directly) (through the clothing)] (name of body part) of _______, with an intent to (arouse) (gratify the sexual desire of) __________.
###### (d) Sexual abuse of a child involving indecent communication.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, commit a lewd act upon _________, a child who had not attained the age of 16 years, by intentionally communicating to ________ indecent language to wit: ___________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse) (gratify the sexual desire of) ____________.
###### (e) Sexual abuse of a child involving indecent conduct.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, commit a lewd act upon _________, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: __________, intentionally done (with) (in the presence of) _______, which conduct amounted to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
[Note: This statute applies to offenses committed on or after 28 June 2012. Article 120c is a new statute designed to address miscellaneous sexual misconduct. Previous versions of these offenses are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
knowingly and wrongfully views the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy;
knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy; or
**knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);
is guilty of an offense under this section and shall be punished as a court-martial may direct.
**
Forcible Pandering. Any person subject to this chapter who compels another person to engage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.
Indecent Exposure. Any person subject to this chapter who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.
Definitions. In this section:
Act of prostitution. The term 'act of prostitution' means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) on account of which anything of value is given to, or received by, any person.
Private area. The term 'private area' means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.
Reasonable expectation of privacy. The term 'under circumstances in which that other person has a reasonable expectation of privacy' means-
circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or
circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.
Broadcast. The term 'broadcast' means to electronically transmit a visual image with the intent that it be viewed by a person or persons.
Distribute. The term 'distribute' means delivering to the actual or constructive possession of another, including transmission by electronic means.
Indecent manner. The term 'indecent manner' means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
(a) That the accused knowingly and wrongfully viewed the private area of another person;
(b) That said viewing was without the other person's consent; and
(c) That said viewing took place under circumstances in which the other person had a reasonable expectation of privacy.
#### (2) Indecent visual recording.
(a) That the accused knowingly recorded (photographed, videotaped, filmed, or recorded by any means) the private area of another person;
(b) That said visual recording was without the other person's consent; and
(c) That said visual recording was made under circumstances in which the other person had a reasonable expectation of privacy.
#### (3) Broadcasting of an indecent visual recording.
(a) That the accused knowingly broadcast a certain visual recording of another person's private area;
(b) That said visual recording was made or broadcast without the other person's consent;
(c) That the accused knew or reasonably should have known that the visual recording was made or broadcast without the other person's consent;
(d) That said visual recording was made under circumstances in which the other person had a reasonable expectation of privacy; and
(e) That the accused knew or reasonably should have known that said visual recording was made under circumstances in which the other person had a reasonable expectation of privacy.
#### (4) Distribution of an indecent visual recording.
(a) That the accused knowingly distributed a certain visual recording of another person's private area;
(b) That said visual recording was made or distributed without the other person's consent;
(c) That the accused knew or reasonably should have known that said visual recording was made or distributed without the other person's consent;
(d) That said visual recording was made under circumstances in which the other person had a reasonable expectation of privacy; and
(e) That the accused knew or reasonably should have known that said visual recording was made under circumstances in which the other person had a reasonable expectation of privacy.
##### (5) Forcible pandering.
That the accused compelled another person to engage in an act of prostitution with any person.
##### (6) Indecent exposure.
(a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
(b) That the exposure was in an indecent manner; and
(c) That the exposure was intentional.
#### (1) In general.
Sexual offenses have been separated into three statutes: adults (120), children (120b), and other offenses (120c).
##### (2) Definitions.
(a) Recording or visual recording. A "recording" or "visual recording" is a still or moving visual image captured or recorded by any means.
(b) Other terms are defined in paragraph 45c.a.(d), _supra_
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 12 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
##### (a) Indecent viewing.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, knowingly and wrongfully view the private area of _________, without (his) (her) consent and under circumstances in which (he) (she) had a reasonable expectation of privacy.
##### (b) Indecent visual recording.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, knowingly (photograph) (videotape) (film) (make a visual recording of) the private area of _________, without (his) (her) consent and under circumstances in which (he) (she) had a reasonable expectation of privacy.
##### (c) Broadcasting or distributing an indecent visual recording.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, knowingly (broadcast) (distribute) a visual recording of the private area of _________, when the said accused knew or reasonably should have known that the said visual recording was (made) (and/or) (distributed/broadcast) without the consent of ______________ and under circumstances in which (he) (she) had a reasonable expectation of privacy.
#### (2) Forcible pandering.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, wrongfully compel _________ to engage in (a sexual act) (sexual contact) with ___________, to wit: ____________, for the purpose of receiving (money) (other compensation) (_______).
#### (3) Indecent exposure.
In that (personal jurisdiction data), did (at/on board location), on or about _______ 20_, intentionally expose "his (genitalia) (anus) (buttocks)" "her (genitalia) (anus) (buttocks) (areola) (nipple)" in an indecent manner, to wit: __________.
or withholds, by any means, from the possession of the owner or of any other
person any money, personal property, or article of value of any kind-**
the use and benefit of property or to appropriate it to his own use or the
use of any person other than the owner, steals that property and is guilty
of larceny; or**
the use and benefit of property or to appropriate it to his own use or the
use of any person other than the owner, is guilty of wrongful appropriation.**
be punished as a court-martial may direct.**
property from the possession of the owner or of any other person;
That the property belonged to a certain person;
That the property was of a certain value, or of some value; and
That the taking, obtaining, or withholding by the accused was with
the intent permanently to deprive or defraud another person of the use and
benefit of the property or permanently to appropriate the property for the
use of the accused or for any person other than the owner.
[Note: If the property is alleged to be military property, as defined in paragraph 46c(1)(h), add the following element]
property from the possession of the owner or of any other person;
That the property belonged to a certain person;
That the property was of a certain value, or of some value; and
That the taking, obtaining, or withholding by the accused was with
the intent temporarily to deprive or defraud another person of the use and
benefit of the property or temporarily to appropriate the property for the
use of the accused or for any person other than the owner.
A wrongful taking with intent permanently to deprive includes the
common law offense of larceny; a wrongful obtaining with intent permanently
to defraud includes the offense formerly known as obtaining by false pretense;
and a wrongful withholding with intent permanently to appropriate includes
the offense formerly known as embezzlement. Any of the various types of larceny
under Article 121 may be charged and proved under a specification alleging
that the accused "did steal" the property in question.
There must be a taking, obtaining, or withholding of the property
by the thief. For instance, there is no taking if the property is connected
to a building by a chain and the property has not been disconnected from
the building; property is not "obtained" by merely acquiring
title thereto without exercising some possessory control over it. As a general
rule, however, any movement of the property or any exercise of dominion
over it is sufficient if accompanied by the requisite intent. Thus, if an
accused enticed another's horse into the accused's stable without touching
the animal, or procured a railroad company to deliver another's trunk by
changing the check on it, or obtained the delivery of another's goods to
a person or place designated by the accused, or had the funds of another
transferred to the accused's bank account, the accused is guilty of larceny
if the other elements of the offense have been proved. A person may "obtain"
the property of another by acquiring possession without title, and one who
already has possession of the property of another may "obtain"
it by later acquiring title to it. A "withholding" may arise
as a result of a failure to return, account for, or deliver property to its
owner when a return, accounting, or delivery is due, even if the owner has
made no demand for the property, or it may arise as a result of devoting
property to a use not authorized by its owner. Generally, this is so whether
the person withholding the property acquired it lawfully or unlawfully. _
See_ subparagraph c(1)(f) below. However, acts which constitute the
offense of unlawfully receiving, buying, or concealing stolen property or
of being an accessory after the fact are not included within the meaning of
"withholds." Therefore, neither a receiver of stolen property
nor an accessory after the fact can be convicted of larceny on that basis
alone. The taking, obtaining, or withholding must be of specific property.
A debtor does not withhold specific property from the possession of a creditor
by failing or refusing to pay a debt, for the relationship of debtor and
creditor does not give the creditor a possessory right in any specific money
or other property of the debtor.
Article 121 requires that the taking, obtaining, or withholding
be from the possession of the owner or of any other person. Care, custody,
management, and control are among the definitions of possession.
"Owner" refers to the person who, at the time of the
taking, obtaining, or withholding, had the superior right to possession
of the property in the light of all conflicting interests therein which
may be involved in the particular case. For instance, an organization is the
true owner of its funds as against the custodian of the funds charged with
the larceny thereof.
"Any other person" means any person-even a person
who has stolen the property-who has possession or a greater right
to possession than the accused. In pleading a violation of this article,
the ownership of the property may be alleged to have been in any person,
other than the accused, who at the time of the theft was a general owner
or a special owner thereof. A general owner of property is a person who has
title to it, whether or not that person has possession of it; a special owner,
such as a borrower or hirer, is one who does not have title but who does
have possession, or the right of possession, of the property.
"Person," as used in referring to one from whose possession
property has been taken, obtained, or withheld, and to any owner of property,
includes (in addition to a natural person) a government, a corporation,
an association, an organization, and an estate. Such a person need not be
a legal entity.
The taking, obtaining, or withholding of the property must be wrongful.
As a general rule, a taking or withholding of property from the possession
of another is wrongful if done without the consent of the other, and an
obtaining of property from the possession of another is wrongful if the obtaining
is by false pretense. However, such an act is not wrongful if it is authorized
by law or apparently lawful superior orders, or, generally, if done by a
person who has a right to the possession of the property either equal to
or greater than the right of one from whose possession the property is taken,
obtained, or withheld. An owner of property who takes or withholds it from
the possession of another, without the consent of the other, or who obtains
it therefrom by false pretense, does so wrongfully if the other has a superior
right-such as a lien-to possession of the property. A person
who takes, obtains, or withholds property as the agent of another has the
same rights and liabilities as does the principal, but may not be charged
with a guilty knowledge or intent of the principal which that person does
not share.
With respect to obtaining property by false pretense, the false
pretense may be made by means of any act, word, symbol, or token. The pretense
must be in fact false when made and when the property is obtained, and it
must be knowingly false in the sense that it is made without a belief in
its truth. A false pretense is a false representation of past or existing
fact. In addition to other kinds of facts, the fact falsely represented
by a person may be that person's or another's power, authority, or intention.
Thus, a false representation by a person that person presently intends to
perform a certain act in the future is a false representation of an existing
fact-the intention-and thus a false pretense. Although the pretense
need not be the sole cause inducing the owner to part with the property,
it must be an effective and intentional cause of the obtaining. A false representation
made after the property was obtained will not result in a violation of Article
by false pretense and with intent to steal, even though the owner neither
intended nor was requested to part with title to the property. Thus, a person
who gets another's watch by pretending that it will be borrowed briefly
and then returned, but who really intends to sell it, is guilty of larceny.
The offense of larceny requires that the taking, obtaining, or
withholding by the thief be accompanied by an intent permanently to deprive
or defraud another of the use and benefit of property or permanently to
appropriate the property to the thief's own use or the use of any person other
than the owner. These intents are collectively called an intent to steal.
Although a person gets property by a taking or obtaining which was not wrongful
or which was without a concurrent intent to steal, a larceny is nevertheless
committed if an intent to steal is formed after the taking or obtaining and
the property is wrongfully withheld with that intent. For example, if a
person rents another's vehicle, later decides to keep it permanently, and
then either fails to return it at the appointed time or uses it for a purpose
not authorized by the terms of the rental, larceny has been committed, even
though at the time the vehicle was rented, the person intended to return
it after using it according to the agreement.
An intent to steal may be proved by circumstantial evidence. Thus,
if a person secretly takes property, hides it, and denies knowing anything
about it, an intent to steal may be inferred; if the property was taken
openly and returned, this would tend to negate such an intent. Proof of sale
of the property may show an intent to steal, and therefore, evidence of such
a sale may be introduced to support a charge of larceny. An intent to steal
may be inferred from a wrongful and intentional dealing with the property
of another in a manner likely to cause that person to suffer a permanent
loss thereof.
(A) Motive does not negate intent.
The accused's purpose in taking an item ordinarily is irrelevant
to the accused's guilt as long as the accused had the intent required under
subparagraph c(1)(f)(i) above. For example, if the accused wrongfully took
property as a "joke" or "to teach the owner a lesson"
this would not be a defense, although if the accused intended to return the
property, the accused would be guilty of wrongful appropriation, not larceny.
When a person takes property intending only to return it to its lawful owner,
as when stolen property is taken from a thief in order to return it to its
owner, larceny or wrongful appropriation is not committed.
(B) Intent to pay for or replace property not a defense.
An intent to pay for or replace the stolen property is not a defense,
even if that intent existed at the time of the theft. If, however, the accused
takes money or a negotiable instrument having no special value above its
face value, with the intent to return an equivalent amount of money, the
offense of larceny is not committed although wrongful appropriation may be.
(C) Return of property not a defense.
Once a larceny is committed, a return of the property or payment
for it is no defense. See subparagraph c(2) below when the
taking, obtaining, or withholding is with the intent to return.
Value is a question of fact to be determined on the basis of all
of the evidence admitted.
When the stolen property is an item issued or procured from Government
sources, the price listed in an official publication for that property at
the time of the theft is admissible as evidence of its value. _See
_ Mil. R. Evid. 803(17). However, the stolen item must be shown to
have been, at the time of the theft, in the condition upon which the value
indicated in the official price list is based. The price listed in the official
publication is not conclusive as to the value of the item, and other evidence
may be admitted on the question of its condition and value.
As a general rule, the value of other stolen property is its legitimate
market value at the time and place of the theft. If this property, because
of its character or the place where it was stolen, had no legitimate market
value at the time and place of the theft or if that value cannot readily
be ascertained, its value may be determined by its legitimate market value
in the United States at the time of the theft, or by its replacement cost
at that time, whichever is less. Market value may be established by proof
of the recent purchase price paid for the article in the legitimate market
involved or by testimony or other admissible evidence from any person who
is familiar through training or experience with the market value in question.
The owner of the property may testify as to its market value if familiar
with its quality and condition. The fact that the owner is not an expert
of the market value of the property goes only to the weight to be given
that testimony, and not to its admissibility. _ See_ Mil. R.
Evid. 701. When the character of the property clearly appears in evidence-for
instance, when it is exhibited to the court-martial-the court-martial,
from its own experience, may infer that it has some value. If as a matter
of common knowledge the property is obviously of a value substantially in
excess of $500.00, the court-martial may find a value of more than $500.00.
Writings representing value may be considered to have the value-even
though contingent-which they represented at the time of the theft.
If an owner of property or someone acting in the owner's behalf
steals it from a person who has a superior, but limited, interest in the
property, such as a lien, the value for punishment purposes shall be that
of the limited interest.
Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, not all government property is military property. An item of government property is not military property unless the item in question meets the definition provided above. Retail merchandise of service exchange stores is not military property under this article.
(i) Lost property.
A taking or withholding of lost property by the finder is larceny
if accompanied by an intent to steal and if a clue to the identity of the
general or special owner, or through which such identity may be traced,
is furnished by the character, location, or marketing of the property, or
by other circumstances.
(ii) Multiple article larceny.
When a larceny of several articles is committed at substantially
the same time and place, it is a single larceny even though the articles
belong to different persons. Thus, if a thief steals a suitcase containing
the property of several persons or goes into a room and takes property belonging
to various persons, there is but one larceny, which should be alleged in
but one specification.
(iii) Special kinds of property which may also be the subject of larceny.
Included in property which may be the subject of larceny is property
which is taken, obtained, or withheld by severing it from real estate and
writings which represent value such as commercial paper.
(iv) Services.
Theft of services may not be charged under this paragraph, but_
see_ paragraph 78.
(vi) Credit, Debit, and Electronic Transactions.
Wrongfully engaging in a credit, debit, or electronic transaction
to obtain goods or money is an obtaining-type larceny by false pretense.
Such use to obtain goods is usually a larceny of those goods from the merchant
offering them. Such use to obtain money or a negotiable instrument (e.g.,
withdrawing cash from an automated teller or a cash advance from a bank)
is usually a larceny of money from the entity presenting the money or a
negotiable instrument. For the purpose of this section, the term 'credit,
debit, or electronic transaction' includes the use of an instrument
or device, whether known as a credit card, debit card, automated teller
machine (ATM) card or by any other name, including access devices such as
code, account number, electronic serial number or personal identification
number, issued for the use in obtaining money, goods, or anything else of
value.
Wrongful appropriation requires an intent to temporarily-as
opposed to permanently-deprive the owner of the use and benefit of,
or appropriate to the use of another, the property wrongfully taken, withheld,
or obtained. In all other respects wrongful appropriation and larceny are
identical.
Wrongful appropriation includes: taking another's automobile without
permission or lawful authority with intent to drive it a short distance
and then return it or cause it to be returned to the owner; obtaining a
service weapon by falsely pretending to be about to go on guard duty with
intent to use it on a hunting trip and later return it; and while driving
a government vehicle on a mission to deliver supplies, withholding the vehicle
from government service by deviating from the assigned route without authority,
to visit a friend in a nearby town and later restore the vehicle to its lawful
use. An inadvertent exercise of control over the property of another will
not result in wrongful appropriation. For example, a person who fails to
return a borrowed boat at the time agreed upon because the boat inadvertently
went aground is not guilty of this offense.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
vehicle, aircraft, vessel, firearm, or explosive.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
or any motor vehicle, aircraft, vessel, firearm, or explosive not included
in subparagraph e(1)(c).
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
Confinement for 3 months, and forfeiture of two-thirds pay per month
for 3 months.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
steal , (military property), of a value of (about)
$ , the property of .
In that (personal jurisdiction
data), did, (at/on board-location) (subject matter jurisdiction data,
if required), on or about 20 ,
wrongfully appropriate , of a value of (about) $ , the property of .
**Any person subject to this chapter who
with intent to steal takes anything of value from the person or in the presence
of another, against his will, by means of force or violence or fear of immediate
or future injury to his person or property or to the person or property of
a relative or member of his family or of anyone in his company at the time
of the robbery, is guilty of robbery and shall be punished as a court-martial
may direct.**
or from the possession and in the presence of a person named or described;
That the taking was against the will of that person;
That the taking was by means of force, violence, or force and violence,
or putting the person in fear of immediate or future injury to that person,
a relative, a member of the person's family, anyone accompanying the person
at the time of the robbery, the person's property, or the property of a
relative, family member, or anyone accompanying the person at the time of
the robbery;
That the property belonged to a person named or described;
That the property was of a certain or of some value; and
That the taking of the property by the accused was with the intent
permanently to deprive the person robbed of the use and benefit of the property.
[Note: If the robbery was committed with a firearm, add the
following element]
fear was a firearm.
It is not necessary that the property taken be located within any
certain distance of the victim. If persons enter a house and force the owner
by threats to disclose the hiding place of valuables in an adjoining room,
and, leaving the owner tied, go into that room and steal the valuables, they
have committed robbery.
For a robbery to be committed by force or violence, there must be
actual force or violence to the person, preceding or accompanying the taking
against the person's will, and it is immaterial that there is no fear engendered
in the victim. Any amount of force is enough to constitute robbery if the
force overcomes the actual resistance of the person robbed, puts the person
in such a position that no resistance is made, or suffices to overcome the
resistance offered by a chain or other fastening by which the article is
attached to the person. The offense is not robbery if an article is merely
snatched from the hand of another or a pocket is picked by stealth, no other
force is used, and the owner is not put in fear. But if resistance is overcome
in snatching the article, there is sufficient violence, as when an earring
is torn from a person's ear. There is sufficient violence when a person's
attention is diverted by being jostled by a confederate of a pickpocket,
who is thus enabled to steal the person's watch, even though the person had
no knowledge of the act; or when a person is knocked insensible and that
person's pockets rifled; or when a guard steals property from the person
of a prisoner in the guard's charge after handcuffing the prisoner on the
pretext of preventing escape.
For a robbery to be committed by putting the victim in fear, there
need be no actual force or violence, but there must be a demonstration of
force or menace by which the victim is placed in such fear that the victim
is warranted in making no resistance. The fear must be a reasonable apprehension
of present or future injury, and the taking must occur while the apprehension
exists. The injury apprehended may be death or bodily injury to the person
or to a relative or family member, or to anyone in the person's company at
the time, or it may be the destruction of the person's habitation or other
property or that of a relative or family member or anyone in the person's
company at the time of sufficient gravity to warrant giving up the property
demanded by the assailant.
Robbery includes "taking with intent to steal"; hence,
a larceny by taking is an integral part of a charge of robbery and must
be proved at the trial. _ See_ paragraph 46c(1).
Robberies of different persons at the same time and place are separate
offenses and each such robbery should be alleged in a separate specification.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
by means of (force) (violence) (force and violence) (and) (putting him/her
in fear) (with a firearm) steal from the (person) (presence) of , against his/her will, (a watch) ( ) of
value of (about) $ , the property of .
**Any person subject to this chapter who, with
intent to defraud-**
which would, if genuine, apparently impose a legal liability on another or
change his legal right or liability to his prejudice; or**
to be so made or altered; is guilty of forgery and shall be punished as a
court-martial may direct.**
writing;
apparently impose a legal liability on another or change another's legal
rights or liabilities to that person's prejudice; and
That a certain signature or writing was falsely made or altered;
That the signature or writing was of a nature which would, if genuine,
apparently impose a legal liability on another or change another's legal
rights or liabilities to that person's prejudice;
or writing;
had been falsely made or altered; and
intent to defraud.
Forgery may be committed either by falsely making a writing or by
knowingly uttering a falsely made writing. There are three elements common
to both aspects of forgery: a writing falsely made or altered; and apparent
capability of the writing as falsely made or altered to impose a legal liability
on another or to change another's legal rights or liabilities to that person's
prejudice; and an intent to defraud.
"False" refers not to the contents of the writing or
to the facts stated therein but to the making or altering of it. Hence,
forgery is not committed by the genuine making of a false instrument even
when made with intent to defraud. A person who, with intent to defraud, signs
that person's own signature as the maker of a check drawn on a bank in which
that person does not have money or credit does not commit forgery. Although
the check falsely represents the existence of the account, it is what it
purports to be, a check drawn by the actual maker, and therefore it is not
falsely made. _ See_, however, paragraph 49. Likewise, if
a person makes a false signature of another to an instrument, but adds the
word "by" with that person's own signature thus indicating authority
to sign, the offense is not forgery even if no such authority exists. False
recitals of fact in a genuine document, as an aircraft flight report which
is "padded" by the one preparing it, do not make the writing
a forgery. But see paragraph 31 concerning false official
statements.
Signing the name of another to an instrument having apparent legal
efficacy without authority and with intent to defraud is forgery as the
signature is falsely made. The distinction is that in this case the falsely
made signature purports to be the act of one other than the actual signer.
Likewise, a forgery may be committed by a person signing that person's own
name to an instrument. For example, when a check payable to the order of
a certain person comes into the hands of another of the same name, forgery
is committed if, knowing the check to be another's, that person indorses
it with that person's own name intending to defraud. Forgery may also be
committed by signing a fictitious name, as when Roe makes a check payable
to Roe and signs it with a fictitious name-Doe-as drawer.
The writing must be one which would, if genuine, apparently impose
a legal liability on another, as a check or promissory note, or change that
person's legal rights or liabilities to that person's prejudice, as a receipt.
Some other instruments which may be the subject of forgery are orders for
the delivery of money or goods, railroad tickets, and military orders directing
travel. A writing falsely "made" includes an instrument that
may be partially or entirely printed, engraved, written with a pencil, or
made by photography or other device. A writing may be falsely "made"
by materially altering an existing writing, by filling in a paper signed
in blank, or by signing an instrument already written. With respect to the apparent legal efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts to impose a legal
liability on another, or to change a legal right or liability to the prejudice
of another. If under all the circumstances the instrument has neither real
nor apparent legal efficacy, there is no forgery. Thus, the false making
with intent to defraud of an instrument affirmatively invalid on its face
is not forgery nor is the false making or altering, with intent to defraud,
of a writing which could not impose a legal liability, as a mere letter of
introduction. However, the false making of another's signature on an instrument
with intent to defraud is forgery, even if there is no resemblance to the
genuine signature and the name is misspelled.
See paragraph 49c(14). The intent to defraud need
not be directed toward anyone in particular nor be for the advantage of
the offender.
It is immaterial that nobody was actually defrauded, or that
no further step was made toward carrying out the intent to defraud other
than the false making or altering of a writing.
The alteration must effect a material change in the legal tenor
of the writing. Thus, an alteration which apparently increases, diminishes,
or discharges any obligation is material. Examples of material alterations
in the case of a promissory note are changing the date, amount, or place
of payment. If a genuine writing has been delivered to the accused and while
in the accused's possession is later found to be altered, it may be inferred
that the writing was altered by the accused.
See paragraph 49c(4).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
with intent to defraud, falsely [make (in its entirety) (the signature
of as an indorsement to) (the signature of to) ( ) a certain (check)
(writing) ( ) in the following words and figures,
to wit: ] [alter a certain (check)
(writing) ( ) in the following words and figures,
to wit: , by (adding thereto )
( )], which said (check) (writing) ( ) would, if genuine, apparently operate to the legal harm
of another [*and which (could be) (was) used
to the legal harm of , in that ].
[*Note: This allegation should be used when the document specified
is not one which by its nature would clearly operate to the legal prejudice
of another-for example, an insurance application. The manner in which
the document could be or was used to prejudice the legal rights of another
should be alleged in the last blank.]
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
with intent to defraud, (utter) (offer) (issue) (transfer) a certain (check)
(writing) ( ) in the following words and figures,
to wit: , a writing which would, if genuine, apparently
operate to the legal harm of another, (which said (check) (writing) ( )) (the signature to which said (check) (writing) ( )) ( ) was, as he/she, the
said , then well knew, falsely (made) (altered) (*and
which (could be) (was) used to the legal harm of , in that ).
[*Note: See the note following (1), above]
without sufficient funds
Any person subject to this chapter who-
intent to defraud; or**
purpose, with intent to deceive; makes, draws, utters, or delivers any check,
draft, or order for the payment of money upon any bank or other depository,
knowing at the time that the maker or drawer has not or will not have sufficient
funds in, or credit with, the bank or other depository for the payment of
that check, draft, or order in full upon its presentment, shall be punished
as a court-martial may direct. The making, drawing, uttering, or delivering
by a maker or drawer of a check, draft, or order, payment of which is refused
by the drawee because of insufficient funds of the maker or drawer in the
drawee's possession or control, is prima facie evidence of his intent to
defraud or deceive and of his knowledge of insufficient funds in, or credit
with, that bank or other depository, unless the maker or drawer pays the
holder the amount due within five days after receiving notice, orally or
in writing, that the check, draft, or order was not paid on presentment.
In this section, the word "credit" means an arrangement or understanding,
express or implied, with the bank or other depository for the payment of
that check, draft, or order.**
defraud.
or order for the payment of money payable to a named person or organization;
or thing of value;
That the act was committed with intent to defraud; and
That at the time of making, drawing, uttering, or delivery of the
instrument the accused knew that the accused or the maker or drawer had
not or would not have sufficient funds in, or credit with, the bank or other
depository for the payment thereof upon presentment.
with intent to deceive.
or order for the payment of money payable to a named person or organization;
effecting the payment of a past due obligation or for some other purpose;
That the act was committed with intent to deceive; and
That at the time of making, drawing, uttering, or delivering of
the instrument, the accused knew that the accused or the maker or drawer
had not or would not have sufficient funds in, or credit with, the bank
or other depository for the payment thereof upon presentment.
The written instruments covered by this article include any check,
draft (including share drafts), or order for the payment of money drawn
upon any bank or other depository, whether or not the drawer bank or depository
is actually in existence. It may be inferred that every check, draft, or
order carries with it a representation that the instrument will be paid in
full by the bank or other depository upon presentment by a holder when due.
"Bank or other depository" includes any business regularly
but not necessarily exclusively engaged in public banking activities.
"Making" and "drawing" are synonymous and
refer to the act of writing and signing the instrument.
"Uttering" and "delivering" have similar
meanings. Both mean transferring the instrument to another, but "uttering"
has the additional meaning of offering to transfer. A person need not personally
be the maker or drawer of an instrument in order to violate this article
if that person utters or delivers it. For example, if a person holds a check
which that person knows is worthless, and utters or delivers the check to
another, that person may be guilty of an offense under this article despite
the fact that the person did not personally draw the check.
"For the procurement" means for the purpose of obtaining
any article or thing of value. It is not necessary that an article or thing
of value actually be obtained, and the purpose of the obtaining may be for
the accused's own use or benefit or for the use or benefit of another.
"For the payment" means for the purpose or purported
purpose of satisfying in whole or in part any past due obligation. Payment
need not be legally effected.
"For any other purpose" includes all purposes other
than the payment of a past due obligation or the procurement of any article
or thing of value. For example, it includes paying or purporting to pay
an obligation which is not yet past due. The check, draft, or order, whether
made or negotiated for the procurement of an article or thing of value or
for the payment of a past due obligation or for some other purpose, need
not be intended or represented as payable immediately. For example, the
making of a postdated check, delivered at the time of entering into an installment
purchase contract and intended as payment for a future installment, would,
if made with the requisite intent and knowledge, be a violation of this
article.
"Article or thing of value" extends to every kind of
right or interest in property, or derived from contract, including interests
and rights which are intangible or contingent or which mature in the future.
A "past due obligation" is an obligation to pay money,
which obligation has legally matured before making, drawing, uttering, or
delivering the instrument.
The accused must have knowledge, at the time the accused makes,
draws, utters, or delivers the instrument, that the maker or drawer, whether
the accused or another, has not or will not have sufficient funds in, or
credit with, the bank or other depository for the payment of the instrument
in full upon its presentment. Such knowledge may be proved by circumstantial
evidence.
"Sufficient funds" refers to a condition in which the
account balance of the maker or drawer in the bank or other depository at
the time of the presentment of the instrument for payment is not less than
the face amount of the instrument and has not been rendered unavailable for
payment by garnishment, attachment, or other legal procedures.
"Credit" means an arrangement or understanding, express
or implied, with the bank or other depository for the payment of the check,
draft, or order. An absence of credit includes those situations in which
an accused writes a check on a nonexistent bank or on a bank in which the
accused has no account.
"Upon its presentment" refers to the time the demand
for payment is made upon presentation of the instrument to the bank or other
depository on which it was drawn.
"Intent to defraud" means an intent to obtain, through
a misrepresentation, an article or thing of value and to apply it to one's
own use and benefit or to the use and benefit of another, either permanently
or temporarily.
"Intent to deceive" means an intent to mislead, cheat,
or trick another by means of a misrepresentation made for the purpose of
gaining an advantage for oneself or for a third person, or of bringing about
a disadvantage to the interests of the person to whom the representation
was made or to interests represented by that person.
Under this article, two times are involved: (a) when the accused
makes, draws, utters, or delivers the instrument; and (b) when the instrument
is presented to the bank or other depository for payment. With respect to
(a), the accused must possess the requisite intent and must know that the
maker or drawer does not have or will not have sufficient funds in, or credit
with, the bank or the depository for payment of the instrument in full upon
its presentment when due. With respect to (b), if it can otherwise be shown
that the accused possessed the requisite intent and knowledge at the time
the accused made, drew, uttered, or delivered the instrument, neither proof
of presentment nor refusal of payment is necessary, as when the instrument
is one drawn on a nonexistent bank.
The provision of this article with respect to establishing prima
facie evidence of knowledge and intent by proof of notice and nonpayment
within 5 days is a statutory rule of evidence. The failure of an accused
who is a maker or drawer to pay the holder the amount due within 5 days after
receiving either oral or written notice from the holder of a check, draft,
or order, or from any other person having knowledge that such check, draft,
or order was returned unpaid because of insufficient funds, is prima facie
evidence (a) that the accused had the intent to defraud or deceive as alleged;
and (b) that the accused knew at the time the accused made, drew, uttered,
or delivered the check, draft, or order that the accused did not have or
would not have sufficient funds in, or credit with, the bank or other depository
for the payment of such check, draft, or order upon its presentment for
payment. Prima facie evidence is that evidence from which the accused's
intent to defraud or deceive and the accused's knowledge of insufficient funds
in or credit with the bank or other depository may be inferred, depending
on all the circumstances. The failure to give notice referred to in the
article, or payment by the accused, maker, or drawer to the holder of the
amount due within 5 days after such notice has been given, precludes the
prosecution from using the statutory rule of evidence but does not preclude
conviction of this offense if all the elements are otherwise proved.
Honest mistake is an affirmative defense to offenses under this
article. See R.C.M. 916(j).
See paragraph 3 of this part and Appendix 12A.
defraud, in the face amount of:
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
with intent to deceive.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
defraud.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20,
with intent to defraud and for the procurement of (lawful currency) (and)
( (an article) (a thing) of value), wrongfully and
unlawfully ((make (draw)) (utter) (deliver) to ,)
a certain (check) (draft) (money order) upon the ( Bank)
( depository) in words and figures as follows, to
wit: , then knowing that (he/she) ( ), the (maker) (drawer) thereof, did not or would not have sufficient
funds in or credit with such (bank) (depository) for the payment of the said
(check) (draft) (order) in full upon its presentment.
with intent to deceive.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
with intent to deceive and for the payment of a past due obligation, to wit:
(for the purpose of ) wrongfully
and unlawfully ((make) (draw)) (utter) (deliver) to ,
a certain (check) (draft) (money order) for the payment of money upon ( Bank) ( depository), in words and
figures as follows, to wit: , then knowing that (he/she)
( ), the (maker) (drawer) thereof, did not or would
not have sufficient funds in or credit with such (bank) (depository) for
the payment of the said (check) (draft) (order) in full upon its presentment.
**Any person subject to this chapter who, with intent
to injure, disfigure, or disable, inflicts upon the person of another an
injury which-**
seriously disfigures his person by any mutilation thereof;
destroys or disables any member or organ of his body; or
**seriously diminishes his physical vigor by the injury of
any member or organ; is guilty of maiming and shall be punished as a court-martial
may direct.**
That the accused inflicted a certain injury upon a certain person;
That this injury seriously disfigured the person's body, destroyed
or disabled an organ or member, or seriously diminished the person's physical
vigor by the injury to an organ or member; and
injury to a person.
It is maiming to put out a person's eye, to cut off a hand, foot,
or finger, or to knock out a tooth, as these injuries destroy or disable
those members or organs. It is also maiming to injure an internal organ
so as to seriously diminish the physical vigor of a person. Likewise, it
is maiming to cut off an ear or to scar a face with acid, as these injuries
seriously disfigure a person. A disfigurement need not mutilate any entire
member to come within the article, or be of any particular type, but must
be such as to impair perceptibly and materially the victim's comeliness.
The disfigurement, diminishment of vigor, or destruction or disablement
of any member or organ must be a serious injury of a substantially permanent
nature. However, the offense is complete if such an injury is inflicted even
though there is a possibility that the victim may eventually recover the
use of the member or organ, or that the disfigurement may be cured by surgery.
To prove the offense it is not necessary to prove the specific means
by which the injury was inflicted. However, such evidence may be considered
on the question of intent.
Maiming requires a specific intent to injure generally but not a
specific intent to maim. Thus, one commits the offense who intends only
a slight injury, if in fact there is infliction of an injury of the type
specified in this article. Infliction of the type of injuries specified in
this article upon the person of another may support an inference of the intent
to injure, disfigure, or disable.
If the injury is done under circumstances which would justify or
excuse homicide, the offense of maiming is not committed. See R.C.M.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required) on or about 20 ,
maim by (crushing his/her foot with a sledge hammer)
( ).
**(a) Forcible sodomy.-Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex by force or without the consent of the other person is guilty of forcible sodomy and shall be punished as a court-martial may direct.
Bestiality.-Any person subject to this chapter who engages in unnatural carnal copulation with an animal is guilty of bestiality and shall be punished as a court-martial may direct.
Scope of offenses.-Penetration, however slight, is sufficient to complete an offense under subsection (a) or (b).**
That the accused engaged in unnatural carnal copulation with a certain other person.
That the act was done by force or without the consent of the other person.
It is unnatural carnal copulation for a person to take into that person's mouth or anus the sexual organ of another person or of an animal; or to place that person's sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.
For purposes of this Article, the term "force" means an act of force done without legal justification or excuse.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. Mandatory minimum - Dismissal or dishonorable discharge.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about ________20_, engage in unnatural carnal copulation with ______, by force or without the consent of the said ______.
In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about ________20__, engage in unnatural carnal copulation with (type of animal).
burns or sets on fire an inhabited dwelling, or any other structure, movable
or immovable, wherein to the knowledge of the offender there is at the time
a human being, is guilty of aggravated arson and shall be punished as a court-martial
may direct.**
burns or sets fire to the property of another, except as provided in subsection
(a), is guilty of simple arson and shall be punished as a court-martial may
direct.**
That the accused burned or set on fire an inhabited dwelling;
That this dwelling belonged to a certain person and was of a certain
value; and
That the accused burned or set on fire a certain structure;
That the act was willful and malicious;
That there was a human being in the structure at the time;
That the accused knew that there was a human being in the structure
at the time; and
value.
That the accused burned or set fire to certain property of another;
That the property was of a certain value; and
That the act was willful and malicious.
In aggravated arson, danger to human life is the essential element;
in simple arson, it is injury to the property of another. In either case,
it is immaterial that no one is, in fact, injured. It must be shown that
the accused set the fire willfully and maliciously, that is, not merely by
negligence or accident.
An inhabited dwelling includes the outbuildings that form part of
the cluster of buildings used as a residence. A shop or store is not an
inhabited dwelling unless occupied as such, nor is a house that has never
been occupied or which has been temporarily abandoned. A person may be guilty
of aggravated arson of the person's dwelling, whether as owner or tenant.
Aggravated arson may also be committed by burning or setting on
fire any other structure, movable or immovable, such as a theater, church,
boat, trailer, tent, auditorium, or any other sort of shelter or edifice,
whether public or private, when the offender knows that there is a human
being inside at the time. It may be that the offender had this knowledge
when the nature of the structure-as a department store or theater
during hours of business, or other circumstances-are shown to have
been such that a reasonable person would have known that a human being was
inside at the time.
It is not necessary that the dwelling or structure be consumed or
materially injured; it is enough if fire is actually communicated to any
part thereof. Any actual burning or charring is sufficient, but a mere scorching
or discoloration by heat is not.
For the offense of aggravated arson, the value and ownership of
the dwelling or other structure are immaterial, but should ordinarily be
alleged and proved to permit the finding in an appropriate case of the included
offense of simple arson.
"Simple arson" is the willful and malicious burning
or setting fire to the property of another under circumstances not amounting
to aggravated arson. The offense includes burning or setting fire to real
or personal property of someone other than the offender. _See also
_ paragraph 67 (Burning with intent to defraud).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
willfully and maliciously (burn) (set on fire) an inhabited dwelling, to
wit: (the residence of ) ( ),
(the property of ) of a value of (about) $ .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or 20 , willfully
and maliciously (burn) (set on fire), knowing that a human being was therein
at the time, (the Post Theater) ( , the property of ), of a value of (about) $ .
In that (personal jurisdiction data),
did, (at/on board- location) (subject-matter jurisdiction data, if
required), on or about 20 ,
willfully and maliciously (burn) (set fire to) (an automobile) ( ), the property of , of a value of (about)
$ .
**Any person subject to this chapter who communicates
threats to another person with the intention thereby to obtain anything
of value or any acquittance, advantage, or immunity is guilty of extortion
and shall be punished as a court-martial may direct.**
That the accused communicated a certain threat to another; and
That the accused intended to unlawfully obtain something of value,
or any acquittance, advantage, or immunity.
Extortion is complete upon communication of the threat with the
requisite intent. The actual or probable success of the extortion need not
be proved.
A threat may be communicated by any means but must be received by
the intended victim. The threat may be: a threat to do any unlawful injury
to the person or property of the person threatened or to any member of that
person's family or any other person held dear to that person; a threat to
accuse the person threatened, or any member of that persons's family or any
other person held dear to that person, of any crime; a threat to expose
or impute any deformity or disgrace to the person threatened or to any member
of that person's family or any other person held dear to that person; a threat
to expose any secret affecting the person threatened or any member of that
person's family or any other person held dear to that person; or a threat
to do any other harm.
An "acquittance" is a release or discharge from an
obligation.
Unless it is clear from the circumstances, the advantage or immunity
sought should be described in the specification. An intent to make a person
do an act against that person's will is not, by itself, sufficient to constitute
extortion.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
with intent unlawfully to obtain (something of value) (an acquittance) (an
advantage, to wit ) (an immunity, to wit ), communicate to a threat to (here describe
the threat).
unlawful force or violence to do bodily harm to another person, whether or
not the attempt or offer is consummated, is guilty of assault and shall
be punished as a court-martial may direct.**
likely to produce death or grievous bodily harm; or**
with or without a weapon;
is guilty of aggravated assault and shall be punished
as a court-martial may direct.**
person; and
That the accused did bodily harm to a certain person; and
That the bodily harm was done with unlawful force or violence.
to a certain person;
or violence;
petty officer; and
warrant, noncommissioned, or petty officer.
a person in the execution of law enforcement duties.
to a certain person;
or violence;
or was a person who then had and was in the execution of security police,
military police, shore patrol, master at arms, or other military or civilian
law enforcement duties; and
in the execution of duty or was a person who then had and was in the execution
of security police, military police, shore patrol, master at arms, or other
military or civilian law enforcement duties.
That the accused did bodily harm to a certain person;
That the bodily harm was done with unlawful force or violence; and
That the person was then a child under the age of 16 years.
That the accused attempted to do, offered to do, or did bodily harm to a certain person;
That the accused did so with a certain weapon, means, or force;
That the attempt, offer, or bodily harm was done with unlawful force or violence; and
That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.
(Note: Add any of the following as applicable)
That the accused assaulted a certain person;
That grievous bodily harm was thereby inflicted upon such person;
That the grievous bodily harm was done with unlawful force or violence; and
That the accused, at the time, had the specific intent to inflict grievous bodily harm.
(Note: Add any of the following as applicable)
An "assault" is an attempt or offer with unlawful force
or violence to do bodily harm to another, whether or not the attempt or
offer is consummated. It must be done without legal justification or excuse
and without the lawful consent of the person affected. "Bodily harm"
means any offensive touching of another, however slight.
assaults.
An "attempt" type assault requires a specific intent
to inflict bodily harm, and an overt act-that is, an act that amounts
to more than mere preparation and apparently tends to effect the intended
bodily harm. An attempt type assault may be committed even though the victim
had no knowledge of the incident at the time.
An "offer" type assault is an unlawful demonstration
of violence, either by an intentional or by a culpably negligent act or omission,
which creates in the mind of another a reasonable apprehension of receiving
immediate bodily harm. Specific intent to inflict bodily harm is not required.
Doe has committed an attempt type assault, whether or not Roe is aware of
the attempt.
or as a result of culpable negligence, and Roe sees the blow coming and is
thereby put in apprehension of being struck, Doe has committed an offer type
assault whether or not Doe intended to hit Roe.
blow coming and is thereby put in apprehension of being struck, Doe has committed
both on offer and an attempt type assault.
to hit Roe, and Roe does not see the blow and is not placed in fear, then
no assault of any type has been committed.
Preparation not amounting to an overt act, such as picking up a
stone without any attempt or offer to throw it, does not constitute an assault.
The use of threatening words alone does not constitute an assault.
However, if the threatening words are accompanied by a menacing act or gesture,
there may be an assault, since the combination constitutes a demonstration
of violence.
If the circumstances known to the person menaced clearly negate
an intent to do bodily harm there is no assault. Thus, if a person accompanies
an apparent attempt to strike another by an unequivocal announcement in some
form of an intention not to strike, there is no assault. For example, if Doe
raises a stick and shakes it at Roe within striking distance saying, "If
you weren't an old man, I would knock you down," Doe has committed
no assault. However, an offer to inflict bodily injury upon another instantly
if that person does not comply with a demand which the assailant has no lawful
right to make is an assault. Thus, if Doe points a pistol at Roe and says,
"If you don't hand over your watch, I will shoot you," Doe has
committed an assault upon Roe. See also paragraph 47 (robbery)
of this part.
It is not a defense to a charge of assault that for some reason
unknown to the assailant, an assault attempt was bound to fail. Thus, if
a person loads a rifle with what is believed to be a good cartridge and,
pointing it at another, pulls the trigger, that person may be guilty of assault
although the cartridge was defective and did not fire. Likewise, if a person
in a house shoots through the roof at a place where a policeman is believed
to be, that person may be guilty of assault even though the policeman is at
another place on the roof.
An assault is complete if there is a demonstration of violence and
an apparent ability to inflict bodily injury causing the person at whom it
was directed to reasonably apprehend that unless the person retreats bodily
harm will be inflicted. This is true even though the victim retreated and
was never within actual striking distance of the assailant. There must, however,
be an apparent present ability to inflict the injury. Thus, to aim a pistol
at a person at such a distance that it clearly could not injure would not
be an assault.
A "battery" is an assault in which the attempt or offer
to do bodily harm is consummated by the infliction of that harm.
The force applied in a battery may have been directly or indirectly
applied. Thus, a battery can be committed by inflicting bodily injury on
a person through striking the horse on which the person is mounted causing
the horse to throw the person, as well as by striking the person directly.
It may be a battery to spit on another, push a third person against
another, set a dog at another which bites the person, cut another's clothes
while the person is wearing them though without touching or intending to
touch the person, shoot a person, cause a person to take poison, or drive
an automobile into a person. A person who, although excused in using force,
uses more force than is required, commits a battery. Throwing an object
into a crowd may be a battery on anyone whom the object hits.
If bodily harm is inflicted unintentionally and without culpable
negligence, there is no battery. It is also not a battery to touch another
to attract the other's attention or to prevent injury.
The maximum punishment is increased when assault is committed upon
a commissioned officer of the armed forces of the United States, or of a
friendly foreign power, or upon a warrant, noncommissioned, or petty officer
of the armed forces of the United States. Knowledge of the status of the
victim is an essential element of the offense and may be proved by circumstantial
evidence. It is not necessary that the victim be superior in rank or command
to the accused, that the victim be in the same armed force, or that the victim
be in the execution of office at the time of the assault.
a person in the execution of law enforcement duties.
The maximum punishment is increased when assault is committed upon
a sentinel or lookout in the execution of duty or upon a person who was
then performing security police, military police, shore patrol, master at
arms, or other military or civilian law enforcement duties. Knowledge of
the status of the victim is an essential element of this offense and may
be proved by circumstantial evidence. See paragraph 38c(4)
for the definition of "sentinel or lookout."
The maximum punishment is increased when assault consummated by
a battery is committed upon a child under 16 years of age. Knowledge that
the person assaulted was under 16 years of age is not an element of this
offense.
produce death or grievous bodily harm.
A weapon is dangerous when used in a manner likely to produce death
or grievous bodily harm.
The phrase "other means or force" may include any means
or instrumentality not normally considered a weapon. When the natural and
probable consequence of a particular use of any means or force would be
death or grievous bodily harm, it may be inferred that the means or force
is "likely" to produce that result. The use to which a certain
kind of instrument is ordinarily put is irrelevant to the question of its
method of employment in a particular case. Thus, a bottle, beer glass, a
rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs,
or a rifle butt may be used in a manner likely to inflict death or grievous
bodily harm. On the other hand, an unloaded pistol, when presented as a firearm
and not as a bludgeon, is not a dangerous weapon or a means of force likely
to produce grievous bodily harm, whether or not the assailant knew it was
unloaded.
"Grievous bodily harm" means serious bodily injury.
It does not include minor injuries, such as a black eye or a bloody nose,
but does include fractured or dislocated bones, deep cuts, torn members
of the body, serious damage to internal organs, and other serious bodily
injuries.
It is not necessary that death or grievous bodily harm be actually
inflicted to prove assault with a dangerous weapon or means likely to produce
grievous bodily harm.
The maximum punishment is increased when aggravated assault with a dangerous weapon or means likely to produce death or grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.
It must be proved that the accused specifically intended to and
did inflict grievous bodily harm. Culpable negligence will not suffice.
Specific intent may be proved by circumstantial evidence. When
grievous bodily harm has been inflicted by means of intentionally using force
in a manner likely to achieve that result, it may be inferred that grievous
bodily harm was intended. On the other hand, that inference might not be
drawn if a person struck another with a fist in a sidewalk fight even if
the victim fell so that the victim's head hit the curbstone and a skull
fracture resulted. It is possible, however, to commit this kind of aggravated
assault with the fists, as when the victim is held by one of several assailants
while the others beat the victim with their fists and break a nose, jaw,
or rib.
See subparagraph (4)(a)(iii).
The maximum punishment is increased when aggravated assault with intentional infliction of grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Bad conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
States or of a friendly foreign power, not in the execution of office.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 18 months.
of office.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
any person who, in the execution of office, is performing security police,
military police, shore patrol, master at arms, or other military or civilian
law enforcement duties.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 8 years.
Dishonorable discharge, total forfeitures, and confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Dishonorable discharge, total forfeitures, and confinement for 8 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction data),
did, (at/on board-location), (subject-matter jurisdiction data, if
required), on or about 20 ,
assault by (striking at him/her with a ) ( ).
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
unlawfully (strike) ( ) (on)
(in) the with .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
assault , who then was and was then known by the
accused to be a commissioned officer of ( , a friendly
foreign power) (the United States (Army) (Navy) (Marine Corps) (Air Force)
(Coast Guard)) by .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
assault , who then was and was then known by the
accused to be a (warrant) (noncommissioned) (petty) officer of the United
States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard), by .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , assault , who then was and was then known by the accused to be a
(sentinel) (lookout) in the execution of his/her duty, ((in) (on) the ) by .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , assault , who then was and was then known by the accused to be a
person then having and in the execution of (Air Force security police) (military
police) (shore patrol) (master at arms) ((military) (civilian) law enforcement))
duties, by .
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , unlawfully
(strike) ( ) a child under
the age of 16 years, (in) (on) the with .
In that (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about 20 , commit an assault upon (a child under the age of 16 years) by (shooting) (pointing) (striking) (cutting) () (at him/her) (him/her) (in) (on) (the ) with (a dangerous weapon)(a (means) (force) likely to produce death or grievous bodily harm), to wit: a (loaded firearm)(pickax) (bayonet) (club) ().
In that (personal jurisdiction data), did, (at/on board-location)(subject matter jurisdiction data, if required), on or about 20 , commit an assault upon (a child under the age of 16 years) by (shooting) (striking) (cutting)
() (him/her) (on) the with a (loaded firearm) (club) (rock) (brick) ( ) and did thereby intentionally inflict grievous bodily harm upon him/her, to wit:
a (broken leg) (deep cut) (fractured skull) ().
**Any person subject to this chapter who, with intent
to commit an offense punishable under sections 918-928 of this title (articles
118-128), breaks and enters, in the nighttime, the dwelling house of another,
is guilty of burglary and shall be punished as a court-martial may direct.**
of another;
and
an offense punishable under Article 118 through 128, except Article 123a.
"Burglary" is the breaking and entering in the nighttime
of the dwelling house of another, with intent to commit an offense punishable
under Articles 118 through 128, except 123a. In addition, an intent to commit
an offense which, although not covered by Article 118 through 128, necessarily
includes an offense within one of these articles, satisfies the intent element
of this article. This includes, for example, assaults punishable under Article
134 which necessarily include simple assault under Article 128.
There must be a breaking, actual or constructive. Merely to enter
through a hole left in the wall or roof or through an open window or door
will not constitute a breaking; but if a person moves any obstruction to
entry of the house without which movement the person could not have entered,
the person has committed a "breaking." Opening a closed door
or window or other similar fixture, opening wider a door or window already
partly open but insufficient for the entry, or cutting out the glass of a
window or the netting of a screen is a sufficient breaking. The breaking
of an inner door by one who has entered the house without breaking, or by
a person lawfully within the house who has no authority to enter the particular
room, is a sufficient breaking, but unless such a breaking is followed by
an entry into the particular room with the requisite intent, burglary is
not committed. There is a constructive breaking when the entry is gained
by a trick, such as concealing oneself in a box; under false pretense, such
as impersonating a gas or telephone inspector; by intimidating the occupants
through violence or threats into opening the door; through collusion with
a confederate, an occupant of the house; or by descending a chimney, even
if only a partial descent is made and no room is entered.
An entry must be effected before the offense is complete, but the
entry of any part of the body, even a finger, is sufficient. Insertion into
the house of a tool or other instrument is also a sufficient entry, unless
the insertion is solely to facilitate the breaking or entry.
Both the breaking and entry must be in the nighttime. "Nighttime"
is the period between sunset and sunrise when there is not sufficient daylight
to discern a person's face.
To constitute burglary the house must be the dwelling house of
another. "Dwelling house" includes outbuildings within the common
inclosure, farmyard, or cluster of buildings used as a residence. Such an
area is the "curtilage." A store is not a dwelling house unless
part of, or also used as, a dwelling house, as when the occupant uses another
part of the same building as a dwelling, or when the store in habitually
slept in by family members or employees. The house must be used as a dwelling
at the time of the breaking and entering. It is not necessary that anyone
actually be in it at the time of the breaking and entering, but if the house
has never been occupied at all or has been left without any intention of
returning, it is not a dwelling house. Separate dwellings within the same
building, such as a barracks room, apartment, or a room in a hotel, are subjects
of burglary by other residents or guests, and in general by the owner of
the building. A tent is not a subject of burglary.
Both the breaking and entry must be done with the intent to commit
in the house an offense punishable under Articles 118 through 128, except
123a. If, after the breaking and entering, the accused commits one or more
of these offenses, it may be inferred that the accused intended to commit
the offense or offenses at the time of the breaking and entering. If the
evidence warrants, the intended offense may be separately charged. It is
immaterial whether the offense intended is committed or even attempted. If
the offense is intended, it is no defense that its commission was impossible.
If the evidence warrants, the intended offense in the burglary
specification may be separately charged.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
In that (personal jurisdiction data),
did, at , (subject-matter jurisdiction data, if required),
on or about 20 , in the
nighttime, unlawfully break and enter the (dwelling house) ( within the curtilage) of , with intent to
commit (murder) (larceny) ( ) therein.
**Any person subject to this chapter who unlawfully enters
the building or structure of another with intent to commit a criminal offense
therein is guilty of housebreaking and shall be punished as a court-martial
may direct.**
of a certain other person; and
offense therein.
The offense of housebreaking is broader than burglary in that the
place entered is not required to be a dwelling house; it is not necessary
that the place be occupied; it is not essential that there be a breaking;
the entry may be either in the night or in the daytime; and the intent need
not be to commit one of the offenses made punishable under Articles 118 through
The intent to commit some criminal offense is an essential element
of housebreaking and must be alleged and proved to support a conviction of
this offense. If, after the entry the accused committed a criminal offense
inside the building or structure, it may be inferred that the accused intended
to commit that offense at the time of the entry.
Any act or omission which is punishable by courts-martial, except
an act or omission constituting a purely military offense, is a "criminal
offense."
"Building" includes a room, shop, store, office, or
apartment in a building. "Structure" refers only to those structures
which are in the nature of a building or dwelling. Examples of these structures
are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer,
an inclosed truck or freight car, a tent, and a houseboat. It is not necessary
that the building or structure be in use at the time of the entry.
See paragraph 55c(3).
If the evidence warrants, the intended offense in the housebreaking
specification may be separately charged.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that , (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , unlawfully
enter a (dwelling) (room) (bank) (store) (warehouse) (shop) (tent) (stateroom)
( ), the property of , with
intent to commit a criminal offense, to wit: , therein.
**Any person subject to this chapter who in a judicial
proceeding or in a course of justice willfully and corruptly-**
for an oath, gives any false testimony material to the issue or matter of
inquiry; or**
penalty of perjury as permitted under section 1746 of title 28, United States
Code, subscribes any false statement material to the issue or matter of inquiry;
is guilty of perjury and shall be punished as a court-martial may direct.**
proceeding or course of justice;
a matter in which an oath or affirmation was required or authorized by law;
authority to do so;
testimony;
That the testimony was material;
That the testimony was false; and
That the accused did not then believe the testimony to be true.
or course of justice;
under penalty of perjury, the accused declared, certified, verified, or
stated the truth of that certain statement;
That the accused willfully subscribed the statement;
That the statement was material;
That the statement was false; and
That the accused did not then believe the statement to be true.
"Judicial proceeding" includes a trial by court-martial
and "course of justice" includes a preliminary hearing conducted under Article 32. If the accused is charged with having committed perjury before
a court-martial, it must be shown that the court-martial was duly constituted.
The testimony must be false and must be willfully and corruptly
given; that is, it must be proved that the accused gave the false testimony
willfully and did not believe it to be true. A witness may commit perjury
by testifying to the truth of a matter when in fact the witness knows nothing
about it at all or is not sure about it, whether the thing is true or false
in fact. A witness may also commit perjury in testifying falsely as to a
belief, remembrance, or impression, or as to a judgment or opinion. It is
no defense that the witness voluntarily appeared, that the witness was incompetent
as a witness, or that the testimony was given in response to questions that
the witness could have declined to answer.
The false testimony must be with respect to a material matter, but
that matter need not be the main issue in the case. Thus, perjury may be
committed by giving false testimony with respect to the credibility of a material
witness or in an affidavit in support of a request for a continuance, as well
as by giving false testimony with respect to a fact from which a legitimate
inference may be drawn as to the existence or nonexistence of a fact in issue.
The falsity of the allegedly perjured statement cannot be proved
by circumstantial evidence alone, except with respect to matters which by
their nature are not susceptible of direct proof. The falsity of the statement
cannot be proved by the testimony of a single witness unless that testimony
directly contradicts the statement and is corroborated by other evidence
either direct or circumstantial, tending to prove the falsity of the statement.
However, documentary evidence directly disproving the truth of the statement
charged to have been perjured need not be corroborated if: the document is
an official record shown to have been well known to the accused at the time
the oath was taken; or the documentary evidence originated from the accused-or
had in any manner been recognized by the accused as containing the truth-before
the allegedly perjured statement was made.
The oath must be one recognized or authorized by law and must be
duly administered by one authorized to administer it. When a form of oath
has been prescribed, a literal following of that form is not essential; it
is sufficient if the oath administered conforms in substance to the prescribed
form. "Oath" includes an affirmation when the latter is authorized
in lieu of an oath.
The fact that the accused did not believe the statement to be true
may be proved by testimony of one witness without corroboration or by circumstantial
evidence.
See subparagraphs (1) and (2), above, as applicable.
Section 1746 of title 28, United States Code, provides for subscribing to
the truth of a document by signing it expressly subject to the penalty for
perjury. The signing must take place in a judicial proceeding or course of
justice-for example, if a witness signs under penalty of perjury summarized
testimony given at an Article 32 preliminary hearing. It is not required that the
document be sworn before a third party. Section 1746 does not change the requirement
that a deposition be given under oath or alter the situation where an oath
is required to be taken before a specific person.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction data),
having taken a lawful (oath) (affirmation) in a (trial by court-martial of ) (trial by a court of
competent jurisdiction, to wit: of ) (deposition for use in a trial by of ) ( ) that he/she would (testify)
(depose) truly, did, (at/on board-location) (subject-matter jurisdiction
data, if required), on or about 20 , willfully, corruptly, and contrary to such (oath) (affirmation),
(testify) (depose) falsely in substance that , which
(testimony) (deposition) was upon a material matter and which he/she did not
then believe to be true.
In that (personal jurisdiction data),
did (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , in a (judicial
proceeding) (course of justice), and in a (declaration) (certification) (verification)
(statement) under penalty of perjury pursuant to section 1746 of title 28,
United States Code, willfully and corruptly subscribed a false statement
material to the (issue) (matter of inquiry), to wit: ,
which statement was false in that , and which statement
he/she did not then believe to be true.
Any person subject to this chapter-
thereof; or**
for approval or payment, any claim against the United States or any officer
thereof;**
or payment of any claim against the United States or any officer thereof-**
any false or fraudulent statements;**
knowing the oath to be false; or**
other paper, or uses any such signature knowing it to be forged or counterfeited;**
money, or other property of the United States, furnished or intended for
the armed forces thereof, knowingly delivers to any person having authority
to receive it, any amount thereof less than that for which he receives a certificate
or receipt; or**
the receipt of any property of the United States furnished or intended for
the armed forces thereof, makes or delivers to any person such writing without
having full knowledge of the truth of the statements therein contained and
with intent to defraud the United States;
shall, upon conviction, be punished
as a court-martial may direct.**
or an officer thereof;
That the claim was false or fraudulent in certain particulars; and
That the accused then knew that the claim was false or fraudulent
in these particulars.
person in the civil or military service of the United States having authority
to approve or pay it a certain claim against the United States or an officer
thereof;
That the claim was false or fraudulent in certain particulars; and
That the accused then knew that the claim was false or fraudulent
in these particulars.
That the accused made or used a certain writing or other paper;
That certain material statements in the writing or other paper were
false or fraudulent;
and
approval, allowance, or payment of a certain claim or claims against the
United States or an officer thereof.
writing or other paper;
That the oath was false in certain particulars;
That the accused then knew it was false; and
That the act was for the purpose of obtaining the approval, allowance,
or payment of a certain claim or claims against the United States or an officer
thereof.
person on a certain writing or other paper; and
or payment of a certain claim against the United States or an officer thereof.
certain person;
and
or payment of a certain claim against the United States or an officer thereof.
certain money or property of the United States furnished or intended for
the armed forces thereof;
amount or quantity of that money or property;
to a certain person having authority to receive it an amount or quantity
of money or property less than the amount or quantity thereof specified in
the certificate or receipt; and
is true.
the receipt from a certain person of certain property of the United States
furnished or intended for the armed forces thereof;
or receipt;
full knowledge of the truth of a certain material statement or statements
therein;
and
A "claim" is a demand for a transfer of ownership of
money or property and does not include requisitions for the mere use of property.
This article applies only to claims against the United States or any officer
thereof as such, and not to claims against an officer of the United States
in that officer's private capacity.
Making a claim is a distinct act from presenting it. A claim may
be made in one place and presented in another. The mere writing of a paper
in the form of a claim, without any further act to cause the paper to become
a demand against the United States or an officer thereof, does not constitute
making a claim. However, any act placing the claim in official channels constitutes
making a claim, even if that act does not amount to presenting a claim. It
is not necessary that the claim be allowed or paid or that it be made by
the person to be benefited by the allowance or payment. See also
subparagraph (2), below.
The claim must be made with knowledge of its fictitious or dishonest
character. This article does not proscribe claims, however groundless they
may be, that the maker believes to be valid, or claims that are merely made
negligently or without ordinary prudence.
False and fraudulent claims include not only those containing some
material false statement, but also claims which the claimant knows to have
been paid or for some other reason the claimant knows the claimant is not
authorized to present or upon which the claimant knows the claimant has no
right to collect.
The claim must be presented, directly or indirectly, to some person
having authority to pay it. The person to whom the claim is presented may
be identified by position or authority to approve the claim, and need not
be identified by name in the specification. A false claim may be tacitly presented,
as when a person who knows that there is no entitlement to certain pay accepts
it nevertheless without disclosing a disqualification, even though the person
may not have made any representation of entitlement to the pay. For example,
a person cashing a pay check which includes an amount for a dependency allowance,
knowing at the time that the entitlement no longer exists because of a change
in that dependency status, has tacitly presented a false claim. _See
also_ subparagraph (1), above.
The false or fraudulent statement must be material, that is, it
must have a tendency to mislead governmental officials in their consideration
or investigation of the claim. The offense of making a writing or other paper
known to contain a false or fraudulent statement for the purpose of obtaining
the approval, allowance, or payment of a claim is complete when the writing
or paper is made for that purpose, whether or not any use of the paper has
been attempted and whether or not the claim has been presented. _See
also_ the explanation in subparagraph (1) and (2), above.
See subparagraphs (1) and (2), above.
Any fraudulent making of the signature of another is forging or
counterfeiting, whether or not an attempt is made to imitate the handwriting. _
See_ paragraph 48(c) and subparagraph (1) and (2), above.
It is immaterial by what means-whether deceit, collusion,
or otherwise-the accused effected the transaction, or what was the
accused's purpose.
is true.
When an officer or other person subject to military law is authorized
to make or deliver any paper certifying the receipt of any property of the
United States furnished or intended for the armed forces thereof, and a receipt
or other paper is presented for signature stating that a certain amount of
supplies has been furnished by a certain contractor, it is that person's
duty before signing the paper to know that the full amount of supplies therein
stated to have been furnished has in fact been furnished, and that the statements
contained in the paper are true. If the person signs the paper with intent
to defraud the United States and without that knowledge, that person is guilty
of a violation of this section of the article. If the person signs the paper
with knowledge that the full amount was not received, it may be inferred that
the person intended to defraud the United States.
See paragraph 3 of this part and Appendix 12A.
pay and allowances, and confinement for 5 years.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20, (by preparing
(a voucher) ( ) for presentation for approval or payment)
( ), make a claim against the (United States) (finance
officer at ) ( ) in the amount
of $ for (private property alleged to have been (lost)
(destroyed) in the military service) ( ), which claim
was (false) (fraudulent) (false and fraudulent) in the amount
of $ in that and was then known by the
said to be (false) (fraudulent) (false and fraudulent).
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , by presenting
(a voucher)( ) to , an officer
of the United States duly authorized to (approve) (pay) (approve and pay)
such claim, present for (approval) (payment) (approval and payment) a claim
against the (United States) (finance officer at )
( ) in the amount of $ for
(services alleged to have been rendered to the United States by
during ) ( ), which
claim was (false) (fraudulent) (false and fraudulent) in the amount of $ in that , and was then known by
the said to be (false) (fraudulent) (false and fraudulent).
In that (personal jurisdiction data),
for the purpose of obtaining the (approval) (allowance) (payment) (approval,
allowance, and payment), of a claim against the United States in the
amount&ensp of $ , did (at/on board- location) (subject-matter
jurisdiction data, if required), on or about 20 , (make) (use) (make and use) a certain (writing) (paper),
to wit: , which said (writing) (paper), as he/she,
the said , then knew, contained a statement that , which statement was (false) (fraudulent) (false and
fraudulent) in that , and was then known by the said
to be (false) (fraudulent) (false and fraudulent).
In that (personal jurisdiction data),
for the purpose of obtaining the (approval) (allowance) (payment) (approval,
allowance, and payment) of a claim against the United States, did, (at/on
board-location) (subject-matter jurisdiction data, if required), on
or about 20 , make an oath
(to the fact that ) (to a certain (writing) (paper),
to wit: , to the effect that ),
which said oath was false in that , and was then known
by the said to be false.
In that (personal jurisdiction data),
for the purpose of obtaining the (approval) (allowance) (payment) (approval,
allowance, and payment) of a claim against the United States, did (at/on
board-location) (subject-matter jurisdiction data, if required), on
or about 20 , (forge) (counterfeit)
(forge and counterfeit) the signature of upon a in words and figures as follows: .
In that , for the purpose of obtaining
the (approval) (allowance) (payment) (approval, allowance, and payment) of
a claim against the United States, did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
20 , use the signature of on a certain
(writing) (paper), to wit: , then knowing such signature
to be (forged) (counterfeited) (forged and counterfeited).
In that (personal jurisdiction data),
having (charge) (possession) (custody) (control) of (money) ( ) of the United States, (furnished) (intended) (furnished and intended)
for the armed forces thereof, did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
20 , knowingly deliver to , the said
having authority to receive the same, (an amount)
( ), which, as he/she, , then knew,
was ($) () less than the
(amount) () for which he/she received a (certificate)
(receipt) from the said .
In that (personal jurisdiction data),
being authorized to (make) (deliver) (make and deliver) a paper certifying
the receipt of property of the United States (furnished) (intended) (furnished
and intended) for the armed forces thereof, did, (at/on board-location)
(subject-matter jurisdiction data, if required), on or about 20 , without having full knowledge of the
statement therein contained and with intent to defraud the United States,
(make) (deliver) (make and deliver) to , such a writing,
in words and figures as follows: , the property therein
certified as received being of a value of about $ .
**Any commissioned officer, cadet, or midshipman who
is convicted of conduct unbecoming an officer and a gentleman shall be punished
as a court-martial may direct.**
That the accused did or omitted to do certain acts; and
That, under the circumstances, these acts or omissions constituted
conduct unbecoming an officer and gentleman.
As used in this article, "gentleman" includes both male
and female commissioned officers, cadets, and midshipmen.
Conduct violative of this article is action or behavior in an official
capacity which, in dishonoring or disgracing the person as an officer, seriously
compromises the officer's character as a gentleman, or action or behavior
in an unofficial or private capacity which, in dishonoring or disgracing the
officer personally, seriously compromises the person's standing as an officer.
There are certain moral attributes common to the ideal officer and the perfect
gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing,
indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is
or can be expected to meet unrealistically high moral standards, but there
is a limit of tolerance based on customs of the service and military necessity
below which the personal standards of an officer, cadet, or midshipman cannot
fall without seriously compromising the person's standing as an officer,
cadet, or midshipman or the person's character as a gentleman. This article
prohibits conduct by a commissioned officer, cadet, or midshipman which,
taking all the circumstances into consideration, is thus compromising. This
article includes acts made punishable by any other article, provided these
acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned
officer who steals property violates both this article and Article 121. Whenever
the offense charged is the same as a specific offense set forth in this Manual,
the elements of proof are the same as those set forth in the paragraph which
treats that specific offense, with the additional requirement that the act
or omission constitutes conduct unbecoming an officer and gentleman.
Instances of violation of this article include knowingly making
a false official statement; dishonorable failure to pay a debt; cheating
on an exam; opening and reading a letter of another without authority; using
insulting or defamatory language to another officer in that officer's presence
or about that officer to other military persons; being drunk and disorderly
in a public place; public association with known prostitutes; committing
or attempting to commit a crime involving moral turpitude; and failing without
good cause to support the officer's family.
See paragraph 3 of this part and Appendix 12A.
Dismissal, forfeiture of all pay and allowances, and confinement
for a period not in excess of that authorized for the most analogous offense
for which a punishment is prescribed in this Manual, or, if none is prescribed,
for 1 year.
In that (personal jurisdiction data),
did, (at/on board-location), on or about 20 , while undergoing a written examination on the subject
of , wrongfully and dishonorably (receive) (request)
unauthorized aid by ((using) (copying) the examination paper of
)) ( ).
In that (personal jurisdiction data),
was, (at/on board-location), on or about 20 , in a public place, to wit: ,
(drunk) (disorderly) (drunk and disorderly) while in uniform, to the disgrace
of the armed forces.
**Though not specifically mentioned in this chapter,
all disorders and neglects to the prejudice of good order and discipline
in the armed forces, all conduct of a nature to bring discredit upon the
armed forces, and crimes and offenses not capital, of which persons subject
to this chapter may be guilty, shall be taken cognizance of by a general,
special, or summary court-martial, according to the nature and degree of
the offense, and shall be punished at the discretion of that court.**
The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. All offenses under Article 134 require proof of a single terminal element; however, the terminal element may be proven using any of three theories of liability corresponding to clause 1, 2, or 3 offenses.
The terminal element is merely the expression of one of the clauses under Article 134. See paragraph c below for an explanation of the clauses and rules for drafting specifications. More than one clause may be alleged and proven; however, proof of only one clause will satisfy the terminal element. For clause 3 offenses, the military judge may judicially notice whether an offense is capital. See Mil. R. Evid. 202.
That the accused did or failed to do certain acts; and
That, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused did or failed to do certain acts that satisfy each element of the federal statute (including, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territory, Possession, or District law); and
That the offense charged was an offense not capital.
Article 134 makes punishable acts in three categories of offenses
not specifically covered in any other article of the code. These are referred
to as "clauses 1, 2, and 3" of Article 134. Clause 1 offenses
involve disorders and neglects to the prejudice of good order and discipline
in the armed forces. Clause 2 offenses involve conduct of a nature to bring
discredit upon the armed forces. Clause 3 offenses involve noncapital crimes
or offenses which violate Federal law including law made applicable through
the Federal Assimilative Crimes Act, see subsection (4)
below. If any conduct of this nature is specifically made punishable by
another article of the code, it must be charged as a violation of that article. _
See_ subparagraph (5)(a) below. However, see paragraph
59_c_ for offenses committed by commissioned officers, cadets,
and midshipmen.
in the armed forces (clause 1).
"To the prejudice of good order and discipline" refers
only to acts directly prejudicial to good order and discipline and not to
acts which are prejudicial only in a remote or indirect sense. Almost any
irregular or improper act on the part of a member of the military service
could be regarded as prejudicial in some indirect or remote sense; however,
this article does not include these distant effects. It is confined to cases
in which the prejudice is reasonably direct and palpable. An act in violation
of a local civil law or of a foreign law may be punished if it constitutes
a disorder or neglect to the prejudice of good order and discipline in the
armed forces. However, see R.C.M. 203 concerning subject-matter
jurisdiction.
A breach of a custom of the service may result in a violation of
clause 1 of Article 134. In its legal sense, "custom" means
more than a method of procedure or a mode of conduct or behavior which is
merely of frequent or usual occurrence. Custom arises out of long established
practices which by common usage have attained the force of law in the military
or other community affected by them. No custom may be contrary to existing
law or regulation. A custom which has not been adopted by existing statute
or regulation ceases to exist when its observance has been generally abandoned.
Many customs of the service are now set forth in regulations of the various
armed forces. Violations of these customs should be charged under Article
92 as violations of the regulations in which they appear if the regulation
is punitive. _ See_ paragraph 16c.
2).
"Discredit" means to injure the reputation of. This
clause of Article 134 makes punishable conduct which has a tendency to bring
the service into disrepute or which tends to lower it in public esteem.
Acts in violation of a local civil law or a foreign law may be punished if
they are of a nature to bring discredit upon the armed forces. However, _
see_ R.C.M. 203 concerning subject-matter jurisdiction.
State and foreign laws are not included within the crimes and offenses
not capital referred to in this clause of Article 134 and violations thereof
may not be prosecuted as such except when State law becomes Federal law
of local application under section 13 of title 18 of the United States Code
(Federal Assimilative Crimes Act- see subparagraph
(4)(c) below). For the purpose of court-martial jurisdiction, the laws which
may be applied under clause 3 of Article 134 are divided into two groups:
crimes and offenses of unlimited application (crimes which are punishable
regardless where they may be committed), and crimes and offenses of local
application (crimes which are punishable only if committed in areas of federal
jurisdiction).
Certain noncapital crimes and offenses prohibited by the United
States Code are made applicable under clause 3 of Article 134 to all persons
subject to the code regardless where the wrongful act or omission occurred.
Examples include: counterfeiting (18 U.S.C. § 471), and various frauds
against the Government not covered by Article 132.
A person subject to the code may not be punished under clause 3
of Article 134 for an offense that occurred in a place where the law in question
did not apply. For example, a person may not be punished under clause 3 of
Article 134 when the act occurred in a foreign country merely because that
act would have been an offense under the United States Code had the act occurred
in the United States. Regardless where committed, such an act might be punishable
under clauses 1 or 2 of Article 134. There are two types of congressional
enactments of local application: specific federal statutes (defining particular
crimes), and a general federal statute, the Federal Assimilative Crimes Act
(which adopts certain state criminal laws).
The Federal Assimilative Crimes Act is an adoption by Congress of
state criminal laws for areas of exclusive or concurrent federal jurisdiction,
provided federal criminal law, including the UCMJ, has not defined an applicable
offense for the misconduct committed. The Act applies to state laws validly
existing at the time of the offense without regard to when these laws were
enacted, whether before or after passage of the Act, and whether before or
after the acquisition of the land where the offense was committed. For example,
if a person committed an act on a military installation in the United States
at a certain location over which the United States had either exclusive or
concurrent jurisdiction, and it was not an offense specifically defined by
federal law (including the UCMJ), that person could be punished for that act
by a court-martial if it was a violation of a noncapital offense under the
law of the State where the military installation was located. This is possible
because the Act adopts the criminal law of the state wherein the military
installation is located and applies it as though it were federal law. The
text of the Act is as follows: Whoever within or upon any of the places now
existing or hereafter reserved or acquired as provided in section 7 of this
title, is guilty of any act or omission which, although not made punishable
by any enactment of Congress, would be punishable if committed or omitted
within the jurisdiction of the State, Territory, Possession, or District in
which such place is situated, by the laws thereof in force at the time of
such act or omission, shall be guilty of a like offense and subject to a
like punishment.
The preemption doctrine prohibits application of Article 134 to
conduct covered by Articles 80 through 132. For example, larceny is covered
in Article 121, and if an element of that offense is lacking-for example,
intent-there can be no larceny or larceny-type offense, either under
Article 121 or, because of preemption, under Article 134. Article 134 cannot
be used to create a new kind of larceny offense, one without the required
intent, where Congress has already set the minimum requirements for such an
offense in Article 121.
A capital offense may not be tried under Article 134.
When alleging a clause 1 or 2 violation, the specification must expressly allege that the conduct was "to the prejudice of good order and discipline" or that it was "of a nature to bring discredit upon the armed forces." The same conduct may be prejudicial to good order and discipline in the armed forces and at the same time be of a nature to bring discredit upon the armed forces. Both clauses may be alleged; however, only one must be proven to satisfy the terminal element. If conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 61 through 113 of this Part), a specification not listed in this Manual may be used to allege the offense.
Clauses 1 and 2 are theories of liability that must be expressly alleged in a specification so that the accused will be given notice as to which clause or clauses to defend against. The words "to the prejudice of good order and discipline in the armed forces" encompass both paragraph c.(2)(a), prejudice to good order and discipline, and paragraph c.(2)(b), breach of custom of the Service. A generic sample specification is provided below:
"In that , (personal jurisdiction data), did (at/on board location), on or about ____ 20_, (commit elements of Article 134 clause 1 or 2 offense), and that said conduct (was to the prejudice of good order and discipline in the armed forces) (and) (was of a nature to bring discredit upon the armed forces)."
If clauses 1 and 2 are alleged together in the terminal element, the word "and" should be used to separate them. Any clause not proven beyond a reasonable doubt should be excepted from the specification at findings. See R.C.M. 918(a)(1). See also Appendix 23 of this Manual, Art. 79. Although using the conjunctive "and" to connect the two theories of liability is recommended, a specification connecting the two theories with the disjunctive "or" is sufficient to provide the accused reasonable notice of the charge against him. See Appendix 23 of this Manual, Art. 134.
The first sentence in paragraph 60c(6)(a) above is inaccurate, as set forth in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). See also United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). Amending subparagraph (6)(a) requires an Executive Order, hence the strikethrough font. To state an offense under Article 134, practitioners should expressly allege at least one of the three terminal elements, i.e., that the alleged conduct was: prejudicial to good order and discipline; service discrediting; or a crime or offense not capital. See Fosler, 70 M.J. at 226 and R.C.M 307(c)(3).
See also the analysis related to this paragraph in Appendix 23. For an explanation of clause 1, 2, and 3 offenses under Article 134, see paragraph 60c(1)-(4).
A generic sample specification is provided below with the terminal element(s) for a clause 1 or 2 offense:
_"In that , (personal jurisdiction data), did (at/on
board-location), on or about (date), (commit elements of Article 134, clause 1 or 2, offense), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (or) (and was) (of a nature to bring discredit upon the armed forces)."_
Lesser included offenses are defined and explained under Article 79; however, in 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser included offenses.
See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Under Jones, an offense under Article 79 is "necessarily included" in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. 68 M.J. at 472. See also discussion following paragraph 3b(1)(c) in this part and the related analysis in Appendix 23 of this Manual. This change in the law has particularly broad impact on Article 134 offenses, and practitioners should carefully consider lesser included offenses using the elements test in conformity with Jones. See paragraph 3b(4) in Appendix 23 of this Manual. If it is uncertain whether an Article 134 offense is included within a charged offense, the government may plead in the alternative, or with accused consent, the government may amend the charge sheet. Jones, 68 M.J. at 472-3 (referring to R.C.M. 603(d) for amending a charge sheet).
When alleging a clause 3 violation, the specification must expressly allege that the conduct was "an offense not capital," and each element of the federal statute (including, in the case of a prosecution under 18 U.S.C. § 13, each element of the assimilated State, Territory, Possession, or District law) must be alleged expressly or by necessary implication. In addition, the federal statute should be identified.
The words "an offense not capital" are sufficient to provide notice to the accused that a clause 3 offense has been charged and are meant to include all crimes and offenses not capital. A generic sample specification for clause 3 offenses is provided below:
In that ______, (personal jurisdiction data), did (at/on board location), on or about _____ 20_, (commit: address each element), an offense not capital, in violation of (name or citation of statute).
In addition to alleging each element of the federal statute, practitioners should consider including, when appropriate and necessary, words of criminality (e.g., wrongfully, knowingly, or willfully).
See paragraph 60.
That the accused wrongfully abused, neglected, or abandoned a certain (public) animal (and the accused caused the serious injury or death of the animal); and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(*Note: Add these elements as applicable.)
That the accused engaged in a sexual act with a certain animal; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
This offense prohibits knowing, reckless, or negligent abuse, neglect, or abandonment of an animal. This offense does not include legal hunting, trapping, or fishing; reasonable and recognized acts of training, handling, or disciplining of an animal; normal and accepted farm or veterinary practices; research or testing conducted in accordance with approved military protocols; protection of person or property from an unconfined animal; or authorized military operations or military training.
As used in this paragraph:
"Abuse" means intentionally and unjustifiably: overdriving, overloading, overworking, tormenting, beating, depriving of necessary sustenance, allowing to be housed in a manner that results in chronic or repeated serious physical harm, carrying or confining in or upon any vehicles in a cruel or reckless manner, or otherwise mistreating an animal. Abuse may include any sexual touching of an animal if not included in the definition of "sexual act with an animal" below.
"Neglect" means allowing another to abuse an animal, or, having the charge or custody of any animal, intentionally, knowingly, recklessly, or negligently failing to provide it with proper food, drink, or protection from the weather consistent with the species, breed, and type of animal involved.
"Abandon" means the intentional, knowing, reckless or negligent leaving of an animal at a location without providing minimum care while having the charge or custody of that animal.
"Animal" means pets and animals of the type that are raised by individuals for resale to others, including but not limited to: cattle, horses, sheep, pigs, goats, chickens, dogs, cats, and similar animals owned or under the control of any person. Animal does not include reptiles, insects, arthropods, or any animal defined or declared to be a pest by the administrator of the United States Environmental Protection Agency.
"Public animal" means any animal owned or used by the United States or any animal owned or used by a local or State government in the United States, its territories or possessions. This would include, for example, drug detector dogs used by the government.
"Sexual act with an animal" means contact between the sex organ, anus, or mouth of a person and an animal or between the sex organ, mouth, or anus of an animal and a person or object manipulated by a person if done with an intent to arouse or gratify the sexual desire of any person.
"Serious injury of an animal" means physical harm that involves a temporary but substantial disfigurement; causes a temporary but substantial loss or impairment of the function of any bodily part or organ; causes a fracture of any bodily part; causes permanent maiming; causes acute pain of a duration that results in suffering; or carries a substantial risk of death. Serious injury includes, but is not limited to, burning, torturing, poisoning, or maiming.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 2 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about (date), wrongfully
[abuse] [neglect] [abandon]) (engage in a sexual act, to wit: , with) a certain (public) animal (*and caused [serious injury to] [the death of] the animal), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
person;
someone else; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Adultery is clearly unacceptable conduct, and it reflects adversely
on the service record of the military member.
bring discredit upon the armed forces.
To constitute an offense under the UCMJ, the adulterous conduct
must either be directly prejudicial to good order and discipline or service
discrediting. Adulterous conduct that is directly prejudicial includes conduct
that has an obvious, and measurably divisive effect on unit or organization
discipline, morale, or cohesion, or is clearly detrimental to the authority
or stature of or respect toward a servicemember. Adultery may also be service
discrediting, even though the conduct is only indirectly or remotely prejudicial
to good order and discipline. Discredit means to injure the reputation of
the armed forces and includes adulterous conduct that has a tendency, because
of its open or notorious nature, to bring the service into disrepute, make
it subject to public ridicule, or lower it in public esteem. While adulterous
conduct that is private and discreet in nature may not be service discrediting
by this standard, under the circumstances, it may be determined to be conduct
prejudicial to good order and discipline. Commanders should consider all
relevant circumstances, including but not limited to the following factors,
when determining whether adulterous acts are prejudicial to good order and
discipline or are of a nature to bring discredit upon the armed forces:
The accused's marital status, military rank, grade, or position;
The co-actor's marital status, military rank, grade, and position,
or relationship to the armed forces;
or their relationship to the armed forces;
of the accused, the co-actor, or the spouse of either to perform their duties
in support of the armed forces;
the commission of the conduct;
the flagrancy of the conduct, such as whether any notoriety ensued; and whether
the adulterous act was accompanied by other violations of the UCMJ;
of the accused, the co-actor or the spouse of either of them, such as a detrimental
effect on unit or organization morale, teamwork, and efficiency;
Whether the accused or co-actor was legally separated; and
Whether the adulterous misconduct involves an ongoing or recent
relationship or is remote in time.
A marriage exists until it is dissolved in accordance with the laws
of a competent state or foreign jurisdiction.
A defense of mistake of fact exists if the accused had an honest
and reasonable belief either that the accused and the co-actor were both
unmarried, or that they were lawfully married to each other. If this defense
is raised by the evidence, then the burden of proof is upon the United States
to establish that the accused's belief was unreasonable or not honest.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction data),
(a married man/a married woman), did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about 20
, wrongfully have sexual intercourse with
, a (married) (woman/man) not (his wife) (her husband), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
Indecent assault was deleted by Executive Order 13447, 72 Fed. Reg. 56179
(Oct. 2, 2007). See Appendix 25.
manslaughter, rape, robbery, forcible sodomy, arson, burglary, or housebreaking)
See paragraph 60.
That the accused assaulted a certain person;
That, at the time of the assault, the accused intended to kill (as
required for murder or voluntary manslaughter) or intended to commit rape,
robbery, forcible sodomy, arson, burglary, or housebreaking; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
An assault with intent to commit any of the offenses mentioned above
is not necessarily the equivalent of an attempt to commit the intended offense,
for an assault can be committed with intent to commit an offense without
achieving that proximity to consummation of an intended offense which is essential
to an attempt. See paragraph 4.
Assault with intent to commit murder is assault with specific intent
to kill. Actual infliction of injury is not necessary. To constitute an assault
with intent to murder with a firearm, it is not necessary that the weapon
be discharged. When the intent to kill exists, the fact that for some unknown
reason the actual consummation of the murder by the means employed is impossible
is not a defense if the means are apparently adapted to the end in view.
The intent to kill need not be directed against the person assaulted if the
assault is committed with intent to kill some person. For example, if a person,
intending to kill Jones, shoots Smith, mistaking Smith for Jones, that person
is guilty of assaulting Smith with intent to murder. If a person fires into
a group with intent to kill anyone in the group, that person is guilty of
and assault with intent to murder each member of the group.
Assault with intent to commit voluntary manslaughter is an assault
committed with a specific intent to kill under such circumstances that, if
death resulted therefrom, the offense of voluntary manslaughter would have
been committed. There can be no assault with intent to commit involuntary
manslaughter, for it is not a crime capable of being intentionally committed.
In assault with intent to commit rape, the accused must have intended to complete the offense. Any lesser intent will not suffice. No actual touching is necessary, but indecent advances
and importunities, however earnest, not accompanied by such an intent, do
not constitute this offense, nor do mere preparations to rape not amounting
to an assault. Once an assault with intent to commit rape is made, it is
no defense that the accused voluntarily desisted.
For assault with intent to rob, the fact that the accused intended
to take money and that the person the accused intended to rob had none is
not a defense.
Assault with intent to commit forcible sodomy is an assault against a human
being and must be committed with a specific intent to commit forcible sodomy. Any
lesser intent, or different intent, will not suffice.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
arson, or burglary.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , with intent
to commit (murder) (voluntary manslaughter) (rape) (robbery) (forcible sodomy) (arson)
(burglary) (housebreaking), commit an assault upon by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused had a living lawful spouse;
That while having such spouse the accused wrongfully married another
person; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Bigamy is contracting another marriage by one who already has a
living lawful spouse. If a prior marriage was void, it will have created
no status of "lawful spouse." However, if it was only voidable
and has not been voided by a competent court, this is no defense. A belief
that a prior marriage has been terminated by divorce, death of the other
spouse, or otherwise, constitutes a defense only if the belief was reasonable. _
See_ R.C.M. 916(j)(1).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
In that (personal jurisdiction data),
did, at , (subject-matter jurisdiction data, if required),
on or about 20 , wrongfully
marry , having at the time of his/her said marriage
to a lawful wife/husband then living, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
of value from a certain person or organization;
certain official duties;
(with the intent to have the accused's decision or action influenced with
respect to a certain matter)* (as compensation for or in recognition of
services rendered, to be rendered, or both, by the accused in relation to
a certain matter)**;
States was and is interested; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
(*Note: This element is required for bribery.)
(**Note: This element is required for graft.)
value to a certain person;
certain official duties;
intent to influence the decision or action of this person)* (as compensation
for or in recognition of services rendered, to be rendered, or both, by
this person in relation to a certain matter)**;
was and is interested; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
(*Note: This element is required for bribery.)
(**Note: This element is required for graft.)
Bribery requires an intent to influence or be influenced in an
official matter; graft does not. Graft involves compensation for services
performed in an official matter when no compensation is due.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction data),
being at the time (a contracting officer for ) (the
personnel officer of ) ( ),
did, (at/on board-location) (subject-matter jurisdiction data, if
required), on or about 20 ,
wrongfully (ask) (accept) (receive) from , (a
contracting company) engaged in
( ), (the sum of $ ) ( ,
of a value of (about) $ ) ( ),
(*with intent to have his/her (decision) (action) influenced with respect
to) ((as compensation for) (in recognition of)) service (rendered) (to
be rendered) (**rendered and to be rendered) by him/her the said
in relation to) an official matter in which the United States
was and is interested, to wit: (the purchasing of military supplies from
) (the transfer of to duty
with ( ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
[*Note: This language should be used to allege bribery.]
[**Note: This language should be used to allege graft.]
In that (personal jurisdiction data),
did (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , wrongfully
(promise) (offer) (give) to , (his/her commanding
officer) (the claims officer of )
( ), (the sum of $ ) ( ,
of a value of (about $ ) ( ,
(*with intent to influence the (decision) (action) of the said
with respect to) ((as compensation for) (in recognition of)) services
(rendered) (to be rendered) (**rendered and to be rendered) by the said
in relation to) an official matter in which the United
States was and is interested, to wit: (the granting of leave to
) (the processing of a claim against the United States
in favor of ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
[*Note: This language should be used to allege bribery.]
[**Note: This language should be used to allege graft.]
See paragraph 60.
certain property owned by a certain person or organization;
a certain person or organization; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 49c(14) for a discussion of "intent
to defraud."
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , willfully
and maliciously (burn) (set fire to) (a dwelling) (a barn) (an automobile),
the property of , with intent to defraud (the insurer
thereof, to wit: ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
dishonorably failing to maintain funds)
See paragraph 60.
That the accused made and uttered a certain check;
That the check was made and uttered for the purchase of a certain
thing, in payment of a debt, or for a certain purpose;
funds in or credit with the drawee bank for payment of the check in full
upon its presentment for payment;
That this failure was dishonorable; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense differs from an Article 123a offense (paragraph 49)
in that there need be no intent to defraud or deceive at the time of making,
drawing, uttering, or delivery, and that the accused need not know at that
time that the accused did not or would not have sufficient funds for payment.
The gist of the offense lies in the conduct of the accused after uttering
the instrument. Mere negligence in maintaining one's bank balance is insufficient
for this offense, for the accused's conduct must reflect bad faith or gross
indifference in this regard. As in the offense of dishonorable failure to
pay debts (see paragraph 71), dishonorable conduct of the
accused is necessary, and the other principles discussed in paragraph 71 also
apply here.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , make and
utter to a certain check, in words and figures as
follows, to wit: , (for the purchase of ) (in payment of a debt) (for the purpose of ),
and did thereafter dishonorably fail to (place) (maintain) sufficient funds
in the Bank for payment of such check in full upon
its presentment for payment, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused had a duty for the care of a certain child;
That the child was under the age of 16 years;
That the accused endangered the child's mental or physical health, safety, or welfare through design or culpable negligence; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
This offense is intended to prohibit and therefore deter child endangerment through design or culpable negligence.
Design means on purpose, intentionally, or according to plan and requires specific intent to endanger the child.
Culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. In the context of this offense, culpable negligence may include acts that, when viewed in the light of human experience, might foreseeably result in harm to a child, even though such harm would not necessarily be the natural and probable consequences of such acts. In this regard, the age and maturity of the child, the conditions surrounding the neglectful conduct, the proximity of assistance available, the nature of the environment in which the child may have been left, the provisions made for care of the child, and the location of the parent or adult responsible for the child relative to the location of the child, among others, may be considered in determining whether the conduct constituted culpable negligence.
Actual physical or mental harm to the child is not required. The offense requires that the accused's actions reasonably could have caused physical or mental harm or suffering. However, if the accused's conduct does cause actual physical or mental harm, the potential maximum punishment increases.
See Paragraph 54c(4)(a)(iii) for an explanation of "grievous bodily harm".
"Endanger" means to subject one to a reasonable probability of harm.
While this offense may be committed against any child under 16, the age of the victim is a factor in the culpable negligence determination. Leaving a teenager alone for an evening may not be culpable (or even simple) negligence; leaving an infant or toddler for the same period might constitute culpable negligence. On the other hand, leaving a teenager without supervision for an extended period while the accused was on temporary duty outside commuting distance might constitute culpable negligence.
The duty of care is determined by the totality of the circumstances and may be established by statute, regulation, legal parent-child relationship, mutual agreement, or assumption of control or custody by affirmative act. When there is no duty of care of a child, there is no offense under this paragraph. Thus, there is no offense when a stranger makes no effort to feed a starving child or an individual/neighbor not charged with the care of a child does not prevent the child from running and playing in the street.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
Dishonorable discharge, forfeiture of all pay and
allowances and confinement for 4 years.
(4) Endangerment by culpable negligence resulting in grievous bodily
harm.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(5) Endangerment by culpable negligence resulting in harm.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(6) Other cases by culpable negligence.
Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.
In that (personal jurisdiction data), (at/on board-location) (subject matter jurisdiction data, if required) on or about 20 , had a duty for the care of , a child under the age of 16 years and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unattended in his quarters for over hours/days with no adult present in the home) (by failing to obtain medical care for the said 's diabetic condition) ( ), and that such conduct (was by design) (constituted culpable negligence) (which resulted in grievous bodily harm, to wit:) (broken leg) (deep cut) (fractured skull) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data),(at/on board-location) (subject matter jurisdiction data, if required) on or about 20 , had a duty for the care of , a child under the age of 16 years, and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unattended in his quarters for over hours/days with no adult present in the home) (by failing to obtain medical care for the said 's diabetic condition) ( ), and that such conduct (was by design) (constituted culpable negligence) (which resulted in (harm, to wit:)
(a black eye) (bloody nose) (minor cut) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data), (at/on board-location) (subject matter jurisdiction data, if required) on or about 20 , was responsible for the care of , a child under the age of 16 years, and did endanger the (mental health) (physical health) (safety) (welfare) of said , by (leaving the said unattended in his quarters for over hours/days with no adult present in the home) (by failing to obtain medical care for the said 's diabetic condition) ( ), and that such conduct (was by design) (constituted culpable negligence), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused knowingly and wrongfully possessed child pornography;
That the possession was with the intent to distribute; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused knowingly and wrongfully distributed child pornography to another; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused knowingly and wrongfully produced child pornography; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
"Child Pornography" means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.
An accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography if he was not aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness may be inferred from circumstantial evidence such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed.
"Distributing" means delivering to the actual or constructive possession of another.
"Minor" means any person under the age of 18 years.
"Possessing" means exercising control of something. Possession may be direct physical custody like holding an item in one's hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.
"Producing" means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.
"Sexually explicit conduct" means actual or simulated:
sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
bestiality;
masturbation;
sadistic or masochistic abuse; or
lascivious exhibition of the genitals or pubic area of any person.
"Visual depiction" includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image.
"Wrongfulness." Any facts or circumstances that show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not limited to, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement.
On motion of the government, in any prosecution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.
Possessing, receiving, viewing, possessing with intent to distribute, distributing, or producing child pornography.
In that (personal jurisdiction data), did (at/on board-location), on or
about 20 knowingly and wrongfully (possess) (receive) (view) (distribute) (produce) child pornography, to wit: a (photograph) (picture) (film) (video) (digital image) (computer image) of a minor, or what appears to be a minor, engaging in sexually explicit conduct (, with intent to distribute the said child pornography), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (or) (and was) (of a nature to bring discredit upon the armed forces).
See paragraph 60.
openly and publicly lived together as husband and wife, holding themselves
out as such;
That the other person was not the spouse of the accused;
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense differs from adultery (see paragraph
or that sexual intercourse took place. Public knowledge of the wrongfulness
of the relationship is not required, but the partners must behave in a manner,
as exhibited by conduct or language, that leads others to believe that a
marital relationship exists.
See paragraph 3 of this part and Appendix 12A.
Confinement for 4 months and forfeiture of two-thirds pay per month
for 4 months.
In that (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction data, if required),
from about 20 , to about
20 , wrongfully cohabit with ,
(a woman not his wife) (a man not her husband), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
authorized to do so;
physical restraint;
of this correctional custody before being released therefrom by proper authority;
and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
authorized to do so;
upon the accused;
before having been released from the correctional custody or relieved of
the restraint by proper authority; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Escape from correctional custody is the act of a person undergoing
the punishment of correctional custody pursuant to Article 15, who, before
being set at liberty by proper authority, casts off any physical restraint
imposed by the custodian or by the place or conditions of custody.
Breach of restraint during correctional custody is the act of a
person undergoing the punishment who, in the absence of physical restraint
imposed by a custodian or by the place or conditions of custody, breaches
any form of restraint imposed during this period.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction data),
while undergoing the punishment of correctional custody imposed by a person
authorized to do so, did, (at/on board-location), on or about 20 , escape from correctional
custody, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data),
while duly undergoing the punishment of correctional custody imposed by
a person authorized to do so, did, (at/on board-location), on or about 20 , breach the restraint imposed
thereunder by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
certain sum;
That this debt became due and payable on or about a certain date;
That while the debt was still due and payable the accused dishonorably
failed to pay this debt; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
More than negligence in nonpayment is necessary. The failure to
pay must be characterized by deceit, evasion, false promises, or other distinctly
culpable circumstances indicating a deliberate nonpayment or grossly indifferent
attitude toward one's just obligations. For a debt to form the basis of this
offense, the accused must not have had a defense, or an equivalent offset
or counterclaim, either in fact or according to the accused's belief, at
the time alleged. The offense should not be charged if there was a genuine
dispute between the parties as to the facts or law relating to the debt which
would affect the obligation of the accused to pay. The offense is not committed
if the creditor or creditors involved are satisfied with the conduct of the
debtor with respect to payment. The length of the period of nonpayment and
any denial of indebtedness which the accused may have made may tend to prove
that the accused's conduct was dishonorable, but the court-martial may convict
only if it finds from all of the evidence that the conduct was in fact dishonorable.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), being indebted to in the sum of
$ for , which amount became due and payable
(on) (about) (on or about) 20 ,
did (at/on board-location) (subject-matter jurisdiction data, if required),
from 20 , to 20 , dishonorably fail to pay said debt, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused made a certain statement;
That the statement was communicated to another person;
That the statement was disloyal to the United States;
That the statement was made with the intent to promote disloyalty
or disaffection toward the United States by any member of the armed forces
or to interfere with or impair the loyalty to the United States or good order
and discipline of any member of the armed forces; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Certain disloyal statements by military personnel may not constitute
an offense under 18 U.S.C. §§ 2385, 2387, and 2388, but may, under
the circumstances, be punishable under this article. Examples include praising
the enemy, attacking the war aims of the United States, or denouncing our
form of government with the intent to promote disloyalty or disaffection
among members of the armed services. A declaration of personal belief can
amount to a disloyal statement if it disavows allegiance owed to the United
States by the declarant. The disloyalty involved for this offense must be
to the United States as a political entity and not merely to a department
or other agency that is a part of its administration.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), did, (at/on board-location), on or about 20 , with intent to (promote (disloyalty) (disaffection) (disloyalty
and disaffection)) ((interfere with) (impair) the (loyalty) (good order and
discipline)) of any member of the armed forces of the United States communicate
to , the following statement, to wit: " ," or words to that effect, which statement was disloyal
to the United States, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
on board ship or in some other place; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 35c(6) for a discussion of intoxication.
Disorderly conduct is conduct of such a nature as to affect the
peace and quiet of persons who may witness it and who may be disturbed or
provoked to resentment thereby. It includes conduct that endangers public
morals or outrages public decency and any disturbance of a contentious or
turbulent character.
Unlike most offenses under Article 134, "conduct of a nature
to bring discredit upon the armed forces" must be included in the specification
and proved in order to authorized the higher maximum punishment when the
offense is service discrediting.
See paragraph 3 of this part and Appendix 12A.
Confinement for 4 months and forfeiture of two-thirds pay per month
for 4 months.
Confinement for 1 month and forfeiture of two-thirds pay per month
for 1 month.
the military service.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
Confinement for 1 month and forfeiture of two-thirds pay per month
for 1 month.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Confinement for 6 months and forfeiture of two-thirds pay per month
for 6 months.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal jurisdiction
data), was, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(drunk) (disorderly) (drunk and disorderly) (which conduct was of a nature
to bring discredit upon the armed forces), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
of a prisoner;
liquor with a prisoner;
That the prisoner was under the charge of the accused;
That the accused knew that the prisoner was a prisoner under the
accused's charge; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
A "prisoner" is a person who is in confinement or custody
imposed under R.C.M. 302, 304, or 305, or under sentence of a court-martial
who has not been set free by proper authority.
For the purposes of this offense, "liquor" includes
any alcoholic beverage.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal jurisdiction
data), a (sentinel) ( ) in charge of prisoners, did,
(at/on board-location), on or about 20 , unlawfully
drink intoxicating liquor with , a prisoner under
his/her charge, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused was a prisoner;
That while in such status the accused was found drunk; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 74c(1).
See paragraph 35c(6) for a discussion of intoxication.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal jurisdiction
data), a prisoner, was (at/on board- location), on or about 20 , found drunk, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
of duties through prior wrongful indulgence in intoxicating liquor or any
drug)
See paragraph 60.
That the accused had certain duties to perform;
That the accused was incapacitated for the proper performance of
such duties;
in intoxicating liquor or any drug; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 74c(2).
Incapacitated means unfit or unable to perform properly. A person
is "unfit" to perform duties if at the time the duties are to
commence, the person is drunk, even though physically able to perform the
duties. Illness resulting from previous overindulgence is an example of being
"unable" to perform duties. For a discussion of "drunk" _
see_ paragraph 35_c_(6).
The accused's lack of knowledge of the duties assigned is an affirmative
defense to this offense.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal jurisdiction
data), was, (at/on board-location), on or about 20
, as a result of wrongful previous overindulgence in intoxicating
liquor or drugs incapacitated for the proper performance of his/her duties, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused wrongfully obtained certain services;
That the obtaining was done by using false pretenses;
That the accused then knew of the falsity of the pretenses;
That the obtaining was with intent to defraud;
That the services were of a certain value; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense is similar to the offenses of larceny and wrongful
appropriation by false pretenses, except that the object of the obtaining
is services (for example, telephone service) rather than money, personal
property, or articles of value of any kind as under Article 121. _
See_ paragraph 46c. See paragraph 49c(14) for a definition
of "intent to defraud."
See paragraph 3 of this part and Appendix 12A.
Obtaining services under false pretenses.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
with intent to defraud, falsely pretend to that , then knowing that the pretenses were false, and by means
thereof did wrongfully obtain from services, of a
value of (about) $ , to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused took an oath or equivalent;
That the oath or equivalent was administered to the accused in a
matter in which such oath or equivalent was required or authorized by law;
authority to do so;
a certain statement;
That the statement was false;
That the accused did not then believe the statement to be true;
and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
False swearing is the making under a lawful oath or equivalent of
any false statement, oral or written, not believing the statement to be true.
It does not include such statements made in a judicial proceeding or course
of justice, as these are under Article 131, perjury (see
paragraph 57). Unlike a false official statement under Article 107
(see paragraph 31) there is no requirement that the statement be
made with an intent to deceive or that the statement be official. _
See_ paragraphs 57c(1), c(2)(c) and
c(2)(e) concerning "judicial proceeding or course of justice,"
proof of the falsity, and the belief of the accused, respectively.
See Article 136 and R.C.M. 807 as to the authority
to administer oaths, and see Section IX of Part III (Military
Rules of Evidence) concerning proof of the signatures of persons authorized
to administer oaths. An oath includes an affirmation when authorized in lieu
of an oath.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(in an affidavit) (in ), wrongfully and unlawfully
(make) (subscribe) under lawful (oath) (affirmation) a false statement in
substance as follows: , which statement he/she did
not then believe to be true, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused discharged a firearm;
That such discharge was caused by the negligence of the accused;
and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
For a discussion of negligence, see paragraph 85c(2).
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20,
through negligence, discharge a (service rifle) ( )
in the (squadron) (tent) (barracks) ( ) of
, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
circumstances as to endanger human life)
See paragraph 60.
That the accused discharged a firearm;
That the discharge was willful and wrongful;
That the discharge was under circumstances such as to endanger human
life; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
"Under circumstances such as to endanger human life"
refers to a reasonable potentiality for harm to human beings in general.
The test is not whether the life was in fact endangered but whether, considering
the circumstances surrounding the wrongful discharge of the weapon, the act
was unsafe to human life in general.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully and willfully discharge a firearm, to wit: ,
(in the mess hall of ) ( ),
under circumstances such as to endanger human life, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused was the driver of a vehicle;
That while the accused was driving the vehicle was involved in an
accident;
That the accused knew that the vehicle had been in an accident;
That the accused left the scene of the accident without (providing
assistance to the victim who had been struck (and injured) by the said vehicle)
or (providing identification);
That such leaving was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
in an accident;
That the accused knew that said vehicle had been in an accident;
That the accused was the superior commissioned or noncommissioned
officer of the driver, or commander of the vehicle, and wrongfully and unlawfully
ordered, caused, or permitted the driver to leave the scene of the accident
without (providing assistance to the victim who had been struck (and injured)
by the said vehicle) (or) (providing identification); and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense covers "hit and run" situations where there
is damage to property other than the driver's vehicle or injury to someone
other than the driver or a passenger in the driver's vehicle. It also covers
accidents caused by the accused, even if the accused's vehicle does not contact
other people, vehicles, or property.
Actual knowledge that an accident has occurred is an essential
element of this offense. Actual knowledge may be proved by circumstantial
evidence.
A passenger other than a senior passenger may also be liable under
this paragraph. See paragraph 1 of this Part.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), (the driver of) (*a passenger in) (the senior officer/noncommissioned
officer in) ( in) a vehicle at the time of an accident
in which said vehicle was involved, and having knowledge of said accident,
did, at (subject-matter jurisdiction data, if required),
on or about 20 (wrongfully
leave) (*by , assist the driver of the said vehicle
in wrongfully leaving) (wrongfully order, cause, or permit the driver to
leave) the scene of the accident without (providing assistance to
, who had been struck (and injured) by the said vehicle) (making
his/her (the driver's) identity known), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
[*Note: This language should be used when the accused was a
passenger and is charged as a principal. See paragraph 1
of this part.]
See paragraph 60.
That the accused was a commissioned or warrant officer;
That the accused fraternized on terms of military equality with
one or more certain enlisted member(s) in a certain manner;
That the accused then knew the person(s) to be (an) enlisted member(s);
That such fraternization violated the custom of the accused's service
that officers shall not fraternize with enlisted members on terms of military
equality; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
The gist of this offense is a violation of the custom of the armed
forces against fraternization. Not all contact or association between officers
and enlisted persons is an offense. Whether the contact or association in
question is an offense depends on the surrounding circumstances. Factors
to be considered include whether the conduct has compromised the chain of
command, resulted in the appearance of partiality, or otherwise undermined
good order, discipline, authority, or morale. The acts and circumstances
must be such as to lead a reasonable person experienced in the problems of
military leadership to conclude that the good order and discipline of the
armed forces has been prejudiced by their tendency to compromise the respect
of enlisted persons for the professionalism, integrity, and obligations of
an officer.
Regulations, directives, and orders may also govern conduct between
officer and enlisted personnel on both a service-wide and a local basis.
Relationships between enlisted persons of different ranks, or between officers
of different ranks may be similarly covered. Violations of such regulations,
directives, or orders may be punishable under Article 92. See paragraph
See paragraph 3 of this part and Appendix 12A.
Dismissal, forfeiture of all pay and allowances, and confinement
for 2 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , knowingly fraternize with ,
an enlisted person, on terms of military equality, to wit: , in violation of the custom of (the Naval Service of the United
States) (the United States Army) (the United States Air Force) (the United
States Coast Guard) that officers shall not fraternize with enlisted persons
on terms of military equality, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused gambled with a certain servicemember;
That the accused was then a noncommissioned or petty officer;
That the servicemember was not then a noncommissioned or petty
officer and was subordinate to the accused;
or petty officer and was subordinate to the accused; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense can only be committed by a noncommissioned or petty
officer gambling with an enlisted person of less than noncommissioned or
petty officer rank. Gambling by an officer with an enlisted person may be
a violation of Article 133. See also paragraph 83.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal
jurisdiction data), did (at/on board-location) (subject-matter jurisdiction
data, if required), on or about 20 , gamble with , then knowing that the said was not a noncommissioned or petty officer and was subordinate
to the said , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That a certain person is dead;
That this death resulted from the act or failure to act of the
accused;
That the killing by the accused was unlawful;
That the act or failure to act of the accused which caused the death
amounted to simple negligence; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Negligent homicide is any unlawful homicide which is the result
of simple negligence. An intent to kill or injure is not required.
Simple negligence is the absence of due care, that is, an act or
omission of a person who is under a duty to use due care which exhibits a
lack of that degree of care of the safety of others which a reasonably careful
person would have exercised under the same or similar circumstances. Simple
negligence is a lesser degree of carelessness than culpable negligence. _
See_ paragraph 44c(2)(a).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal
jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction
data, if required), on or about
20 , unlawfully kill , (by negligently
the said (in) (on) the
with a ) (by driving a (motor vehicle)
( ) against the said in a negligent
manner) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
or petty officer, or an agent or official)
See paragraph 60.
or petty officer, or an agent of superior authority of one of the armed forces
of the United States, or an official of a certain government, in a certain
manner;
That the impersonation was wrongful and willful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
[Note 1: If intent to defraud is in issue, add the
following additional element after (2), above: That the accused did so with
the intent to defraud a certain person or organization in a certain manner;].
[Note 2: If the accused is charged with impersonating
an official of a certain government without an intent to defraud, use the
following additional element after (2) above: That the accused committed
one or more acts which exercised or asserted the authority of the office
the accused claimed to have;].
Impersonation does not depend upon the accused deriving a benefit
from the deception or upon some third party being misled, although this is
an aggravating factor.
"Willful" means with the knowledge that one is falsely
holding one's self out as such.
See paragraph 49c(14).
See paragraph 3 of this part and Appendix 12A.
Impersonating a commissioned, warrant, noncommissioned, or petty
officer, or an agent or official.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully and willfully impersonate (a (commissioned officer) (warrant officer)
(noncommissioned officer) (petty officer) (agent of superior authority) of
the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)) (an official
of the Government of ) by (publicly wearing the uniform
and insignia of rank of a (lieutenant of the ) ( )) (showing the credentials of )
( ) (*with intent to defraud by ) (**and (exercised) (asserted) the authority of
by ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
[*See subsection b note 1.]
[**See subsection b note 2.]
Indecent acts or liberties with a child was deleted by Executive Order 13447, 72 Fed. Reg. 56179 (Oct. 2, 2007). See Appendix 25.
Indecent exposure was deleted by Executive Order 13447, 72 Fed. Reg. 56179
(Oct. 2, 2007). See Appendix 25.
See paragraph 60.
certain language;
That such language was indecent; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
[Note: In appropriate cases add the following element after
element (1): That the person to whom the language was communicated was a
child under the age of 16.]
"Indecent" language is that which is grossly offensive to
modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards. See paragraph 45 if the communication was made in the physical presence of a child.
See paragraph 3 of this part and Appendix 12A.
Indecent or insulting language.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Bad-conduct discharge; forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), did (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
(orally) (in writing) communicate to , (a child under
the age of 16 years), certain indecent language, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
(1) That the accused engaged in certain conduct;
(2) That the conduct was indecent; and
(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(1) "Indecent" means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
(2) Indecent conduct includes offenses previously proscribed by "Indecent acts with another" except that the presence of another person is no longer required. For purposes of this offense, the words "conduct" and "act" are synonymous. For child offenses, some indecent conduct may be included in the definition of lewd act and preempted by Article 120b(c). _See_ paragraph 60c(5)(a).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
In that ______ (personal jurisdiction data), did (at/on board - location) (subject-matter jurisdiction data, if required), on or about (date), (wrongfully commit indecent conduct, to wit: _________), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces) .
See paragraph 60.
into the water;
That such act by the accused was wrongful and intentional; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
"In use by" means any vessel operated by or under the
control of the armed forces. This offense may be committed at sea, at anchor,
or in port.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), did, on board , at (location), on or about 20 , wrongfully and intentionally
jump from , a vessel in use by the armed forces, into
the (sea) (lake) (river), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
away a certain person;
That the accused then held such person against that person's will;
That the accused did so willfully and wrongfully; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
"Inveigle" means to lure, lead astray, or entice by
false representations or other deceitful means. For example, a person who
entices another to ride in a car with a false promise to take the person
to a certain destination has inveigled the passenger into the car. "Decoy"
means to entice or lure by means of some fraud, trick, or temptation. For
example, one who lures a child into a trap with candy has decoyed the child.
"Held" means detained. The holding must be more than
a momentary or incidental detention. For example, a robber who holds the
victim at gunpoint while the victim hands over a wallet, or a rapist who
throws his victim to the ground, does not, by such acts, commit kidnapping.
On the other hand, if, before or after such robbery or rape, the victim is
involuntarily transported some substantial distance, as from a housing area
to a remote area of the base or post, this may be kidnapping, in addition
to robbery or rape.
"Against that person's will" means that the victim was
held involuntarily. The involuntary nature of the detention may result from
force, mental or physical coercion, or from other means, including false
representations. If the victim is incapable of having a recognizable will,
as in the case of a very young child or a mentally incompetent person, the
holding must be against the will of the victim's parents or legal guardian.
Evidence of the availability or nonavailability to the victim of means of
exit or escape is relevant to the voluntariness of the detention, as is evidence
of threats or force, or lack thereof, by the accused to detain the victim.
The accused must have specifically intended to hold the victim
against the victim's will to be guilty of kidnapping. An accidental detention
will not suffice. The holding need not have been for financial or personal
gain or for any other particular purpose. It may be an aggravating circumstance
that the kidnapping was for ransom, however. See R.C.M.
1001(b)(4).
"Wrongfully" means without justification or excuse.
For example, a law enforcement official may justifiably apprehend and detain,
by force if necessary (see R.C.M. 302(d)(3)), a person
reasonably believed to have committed an offense. An official who unlawfully
uses the official's authority to apprehend someone is not guilty of kidnapping,
but may be guilty of unlawful detention. See paragraph
for a parent or legal guardian to seize and hold that parent's or legal guardian's
minor child.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for life without eligibility for parole.
In that ,
(personal jurisdiction data), did, (at/on board-location)
(subject-matter jurisdiction data, if required), on or about
20,
willfully and wrongfully (seize) (confine) (inveigle) (decoy) (carry
away) and hold (a minor whose parent or legal guardian
the accused was not) (a person not a minor) against his/her will, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
stealing)
See paragraph 60.
That the accused took certain mail matter;
That such taking was wrongful;
That the mail matter was taken by the accused before it was delivered
to or received by the addressee;
or pry into the business or secrets of any person or organization; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
matter;
That such opening, secreting, destroying, or stealing was wrongful;
That the mail matter was opened, secreted, destroyed, or stolen
by the accused before it was delivered to or received by the addressee;
and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
These offenses are intended to protect the mail and mail system.
"Mail matter" means any matter deposited in a postal system
of any government or any authorized depository thereof or in official mail
channels of the United States or an agency thereof including the armed forces.
The value of the mail matter is not an element. See paragraph
46c(1) concerning "steal."
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully take certain mail matter, to wit: (a) (letter(s)) (postal card(s))
(package(s)), addressed to , (out of the ( Post Office ) (orderly room of ) (unit mail box of ) ( )) (from ) before (it) (they) (was)
(were) (delivered) (actually received) (to) (by) the (addressee) with intent
to (obstruct the correspondence) (pry into the (business) (secrets)) of , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about , 20 , (wrongfully (open) (secret) (destroy)) (steal) certain mail matter, to wit: (a) (letter(s)) (postal card(s)) (package(s)) addressed to , which said (letters(s)) ( ) (was) (were) then (in (the Post Office ) (orderly room of ) (unit mail box of ) (custody of ) ( )) (had previously been committed
to , (a representative of ,) (an official agency for the transmission of communications)) before said (letter(s)) ( ) (was) (were) (delivered) (actually received) (to) (by) the (addressee), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
matters in)
See paragraph 60.
certain matter for mailing and delivery;
That the act was done wrongfully and knowingly;
That the matter was obscene; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Whether something is obscene is a question of fact. "Obscene"
is synonymous with "indecent" as the latter is defined in paragraph
89c. The matter must violate community standards of decency or obscenity
and must go beyond customary limits of expression. "Knowingly"
means the accused deposited the material with knowledge of its nature.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully and knowingly (deposit) (cause to be deposited) in the (United
States) ( ) mails, for mailing and delivery a (letter)
(picture) ( ) (containing) (portraying) (suggesting)
( ) certain obscene matters, to wit:
, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That a certain serious offense was committed by a certain person;
That the accused knew that the said person had committed the serious
offense;
failed to make it known to civilian or military authorities as soon as possible;
That the concealing was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Misprision of a serious offense is the offense of concealing a
serious offense committed by another but without such previous concert with
or subsequent assistance to the principal as would make the accused an accessory. _
See_ paragraph 3. An intent to benefit the principal is not necessary
to this offense.
For purposes of this paragraph, a "serious offense"
is any offense punishable under the authority of the code by death or by
confinement for a term exceeding 1 year.
A mere failure or refusal to disclose the serious offense without
some positive act of concealment does not make one guilty of this offense.
Making a false entry in an account book for the purpose of concealing a
theft committed by another is an example of a positive act of concealment.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), having knowledge that had actually committed
a serious offense to wit: (the murder of ) ( ), did, (at/on board-location) (subject-matter jurisdiction
data, if required), from about 20 ,
to about 20 , wrongfully
conceal such serious offense by and fail to make
the same known to the civil or military authorities as soon as possible, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused wrongfully did a certain act;
That the accused did so in the case of a certain person against
whom the accused had reason to believe there were or would be criminal proceedings
pending;
otherwise obstruct the due administration of justice; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense may be based on conduct that occurred before preferral
of charges. Actual obstruction of justice is not an element of this offense.
For purposes of this paragraph "criminal proceedings" includes
nonjudicial punishment proceedings under Part V of this Manual. Examples
of obstruction of justice include wrongfully influencing, intimidating, impeding,
or injuring a witness, a person acting on charges under this chapter, an
investigating officer under R.C.M. 406, or a party; and by means of bribery,
intimidation, misrepresentation, or force or threat of force delaying or
preventing communication of information relating to a violation of any criminal
statute of the United States to a person authorized by a department, agency,
or armed force of the United States to conduct or engage in investigations
or prosecutions of such offenses; or endeavoring to do so. _See also
_ paragraph 22 and Article 37.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully (endeavor to) (impede (a trial by court-martial) (an investigation)
( )) [influence the actions of , (a trial counsel of the court-martial) (a defense counsel of the
court-martial) (an officer responsible for making a recommendation concerning
disposition of charges) ( )] [(influence)
(alter) the testimony of as a witness before a (court-martial)
(a preliminary hearing officer) ( )] in the case
of by [(promising) (offering) (giving)
to the said , (the sum of $ )
( , of a value of about $ )]
[communicating to the said a threat to
(if) (unless) he/she, the said , would [recommend
dismissal of the charges against said ]
[(wrongfully refuse to testify) (testify falsely concerning
) ( )] [(at such
trial) (before such preliminary hearing officer)] [
], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused wrongfully did a certain act;
That the accused did so in the case of a certain person against
whom the accused had reason to believe there was or would be an adverse administrative
proceeding pending;
the conduct of such administrative proceeding, or otherwise obstruct the
due administration of justice;
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
For purposes of this paragraph "adverse administrative proceeding"
includes any administrative proceeding or action, initiated against a servicemember,
that could lead to discharge, loss of special or incentive pay, administrative
reduction in grade, loss of a security clearance, bar to reenlistment, or
reclassification. Examples of wrongful interference include wrongfully influencing,
intimidating, impeding, or injuring a witness, an investigator, or other
person acting on an adverse administrative action; by means of bribery, intimidation,
misrepresentation, or force or threat of force delaying or preventing communication
of information relating to such administrative proceeding; and, the wrongful
destruction or concealment of information relevant to such adverse administrative
proceeding.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did (at/on board-location) (subject-matter jurisdiction data, if required),
on or about 20 , (wrongfully
endeavor to) [impede (an adverse administrative proceeding) (an
investigation) ( )] [influence the
actions of , (an officer responsible for making a
recommendation concerning the adverse administrative action) (an individual
responsible for making a decision concerning an adverse administrative proceeding)
(an individual responsible for processing an adverse administrative proceeding)
( )] [(influence)(alter) the testimony
of a witness before (a board established to consider
an administrative proceeding or elimination) (a preliminary hearing officer)
( )] in the case of , by
](promising) (offering) (giving) to the said ,
(the sum of $ ) ( , of a value
of about $ )] [communicating to the
said a threat to ]
, would [recommend dismissal of the action against
said ] [(wrongfully refuse to testify)
(testify falsely concerning ) ( )]
[(at such administrative proceeding) (before such preliminary hearing officer) (before such administrative board)] [
], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
the accused's spouse;
compensation;
That this act was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
That the accused engaged in a sexual act with another person not the accused's spouse;
That the accused compelled, induced, enticed, or procured such person to engage in a sexual act in exchange for money or other compensation; and
That this act was wrongful; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused induced, enticed, or procured a certain person to engage in a sexual act for hire and reward with a person to be directed to said person by the accused;
That this inducing, enticing, or procuring was wrongful;
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
for arranging for, a certain person to engage in a sexual act
with another person;
and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 45.a.(g)(1).
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully engage in (a sexual act) (sexual acts) with
, a person not his/her spouse, for the purpose of receiving (money)
( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data), did, (at/on board location) (subject-matter jurisdiction data, if required), on or about 20 , wrongfully (compel) (induce) (entice) (procure) , a person not his/her spouse, to engage in (a sexual act) (sexual acts) with the accused in exchange for (money)
(), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , wrongfully (induce)(entice)(procure) to engage in (a sexual act) (sexual acts for hire and reward) with persons to be directed to him/her by the said , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
or sodomy.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully (arrange for) (receive valuable consideration, to wit: on account of arranging for) to engage in
(an act) (acts) of (sexual intercourse) (sodomy) with , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
conviction or other criminal proceeding;
That the accused was on parole;
That there were certain conditions of parole that the parolee was
bound to obey;
or failing to do an act; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
from conviction at a court-martial or other criminal proceeding.
parole, or parolee, has agreed to adhere to a parole plan and conditions
of parole. A "parole plan" is a written or oral agreement made
by the prisoner prior to parole to do or refrain from doing certain acts or
activities. A parole plan may include a residence requirement stating where
and with whom a parolee will live, and a requirement that the prisoner have
an offer of guaranteed employment. "Conditions of parole" include the parole
plan and other reasonable and appropriate conditions of parole, such as paying
restitution, beginning or continuing treatment for alcohol or drug abuse,
or paying a fine ordered executed as part of the prisoner's court-martial
sentence. In return for giving his or her "word of honor" to abide by a parole
plan and conditions of parole, the prisoner is granted parole.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, confinement for 6 months, and forfeiture
of two-thirds pay per month for 6 months.
In that (personal jurisdiction
data), a prisoner on parole, did, (at/on board-location), on or about 20 , violate the conditions of
his/her parole by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
oath or its equivalent and to falsely testify, depose, or state upon such
oath or its equivalent concerning a certain matter;
in a matter in which an oath or its equivalent was required or authorized
by law;
authority to do so;
or subscribed a certain statement;
That the statement was material;
That the statement was false;
That the accused and the said person did not then believe that the
statement was true; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 57c for applicable principles.
"Induce and procure" means to influence, persuade, or cause.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
procure to commit perjury by inducing him/her, the
said , to take a lawful (oath) (affirmation) in a
(trial by court-martial of ) (trial by a court
of competent jurisdiction, to wit: of
) (deposition for use in a trial by of ) ( ) that he/she, the said , would (testify) (depose) ( ) truly,
and to (testify) (depose) ( ) willfully, corruptly,
and contrary to such (oath) (affirmation) in substance that
, which (testimony) (deposition) ( ) was upon
a material matter and which the accused and the said did
not then believe to be true, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
mutilating, obliterating, or destroying)
See paragraph 60.
destroyed, or took with the intent to alter, conceal, remove, mutilate, obliterate,
or destroy, a certain public record;
That the act of the accused was willful and unlawful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
"Public records" include records, reports, statements,
or data compilations, in any form, of public offices or agencies, setting
forth the activities of the office or agency, or matters observed pursuant
to duty imposed by law as to which matters there was a duty to report. "Public
records" includes classified matters.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
willfully and unlawfully ((alter) (conceal) (remove) (mutilate) (obliterate)
(destroy)) (take with intent to (alter) (conceal) (remove) (mutilate) (obliterate)
(destroy)) a public record, to wit: , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That a certain person ordered the accused into medical quarantine;
That the person was authorized to order the accused into medical
quarantine;
thereof;
before being released therefrom by proper authority; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
None.
See paragraph 3 of this part and Appendix 12A.
Confinement for 6 months and forfeiture of two-thirds pay per month
for 6 months.
In that (personal jurisdiction
data) having been placed in medical quarantine by a person authorized to
order the accused into medical quarantine, did, (at/on board-location)
(subject-matter jurisdiction data, if required), on or about 20 , break said medical quarantine, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused did engage in conduct;
That the conduct was wrongful and reckless or wanton;
That the conduct was likely to produce death or grievous bodily
harm to another person; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
This offense is intended to prohibit and therefore deter reckless
or wanton conduct that wrongfully creates a substantial risk of death or grievous
bodily harm to others.
Conduct is wrongful when it is without legal justification or excuse.
"Reckless" conduct is conduct that exhibits a culpable
disregard of foreseeable consequences to others from the act or omission
involved. The accused need not intentionally cause a resulting harm or know
that his conduct is substantially certain to cause that result. The ultimate
question is whether, under all the circumstances, the accused's conduct was
of that heedless nature that made it actually or imminently dangerous to
the rights or safety of others.
"Wanton" includes "Reckless" but may connote
willfulness, or a disregard of probable consequences, and thus describe a
more aggravated offense.
When the natural or probable consequence of particular conduct would
be death or grievous bodily harm, it may be inferred that the conduct is
"likely" to produce that result. See paragraph
54c(4)(a)(ii).
"Grievous bodily harm" means serious bodily injury.
It does not include minor injuries, such as a black eye or a bloody nose,
but does include fractured or dislocated bones, deep cuts, torn members of
the body, serious damage to internal organs, and other serious bodily injuries.
It is not necessary that death or grievous bodily harm be actually
inflicted to prove reckless endangerment.
None.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully and (recklessly) (wantonly) engage in conduct, to wit: (describe
conduct), conduct likely to cause death or grievous bodily harm to , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
Requesting commission of an offense was deleted pursuant to Executive Order 12708, effective 1 April 1990.
See paragraph 60.
limits;
That said person was authorized to order said restriction;
That the accused knew of the restriction and the limits thereof;
That the accused went beyond the limits of the restriction before
being released therefrom by proper authority; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
Restriction is the moral restraint of a person imposed by an order
directing a person to remain within certain specified limits. "Restriction"
includes restriction under R.C.M. 304(a)(2), restriction
resulting from imposition of either nonjudicial punishment (see
Part V) or the sentence of a court-martial (see
R.C.M. 1003(b)(6)), and administrative restriction in the interest of training,
operations, security, or safety.
See paragraph 3 of this part and Appendix 12A.
Confinement for 1 month and forfeiture of two-thirds pay per month
for 1 month.
In that (personal jurisdiction
data), having been restricted to the limits of ,
by a person authorized to do so, did, (at/on board-location), on or
about 20 , break said restriction, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
to prevent)
See paragraph 60.
were seizing, about to seize, or endeavoring to seize certain property;
property with intent to prevent the seizure thereof;
were seizing, about to seize, or endeavoring to seize the property; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See Mil. R. Evid. 316(e) concerning
military personnel who may make seizures. It is not a defense that a search
or seizure was technically defective.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal
jurisdiction data), did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about 20 , with intent to prevent its seizure, (destroy) (remove) (dispose
of) , property which, as then
knew, (a) person(s) authorized to make searches and seizures were (seizing)
(about to seize) (endeavoring to seize), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
herself;
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
[Note: If the offense was committed in time of war or in a
hostile fire pay zone, add the following element]
pay zone).
This offense differs from malingering (see paragraph 40) in that
for this offense, the accused need not have harbored a design to avoid performance
of any work, duty, or service which may properly or normally be expected
of one in the military service. This offense is characterized by intentional
self-injury under such circumstances as prejudice good order and discipline
or discredit the armed forces. It is not required that the accused be unable
to perform duties, or that the accused actually be absent from his or her
place of duty as a result of the injury. For example, the accused may inflict
the injury while on leave or pass. The circumstances and extent of injury,
however, are relevant to a determination that the accused's conduct was prejudicial
to good order and discipline, or service-discrediting.
The injury may be inflicted by nonviolent as well as by violent
means and may be accomplished by any act or omission that produces, prolongs,
or aggravates a sickness or disability. Thus, voluntary starvation that
results in a debility is a self-inflicted injury. Similarly, the injury may
be inflicted by another at the accused's request.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
pay zone.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), did, (at/on board-location) (in a hostile fire pay zone) on
or about 20 , (a time of
war,) intentionally injure himself/herself by (nature
and circumstances of injury), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That a certain person was a sentinel or lookout;
That the accused knew that said person was a sentinel or lookout;
That the accused used certain disrespectful language or behaved
in a certain disrespectful manner;
That such language or behavior was wrongful;
That such language or behavior was directed toward and within the
sight or hearing of the sentinel or lookout;
sentinel or lookout; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
That the accused was posted as a sentinel or lookout;
That while so posted, the accused loitered or wrongfully sat down
on post; and
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
[Note: If the offense was committed in time of war or while
the accused was receiving special pay under 37 U.S.C. § 310, add the
following element after element (a): That the accused was so posted (in time
of war) (while receiving special pay under 37 U.S.C. § 310).]
For a discussion of "disrespect," see
paragraph 13c(3).
The discussion set forth in paragraph 38c applies to loitering or
sitting down while posted as a sentinel or lookout as well.
"Loiter" means to stand around, to move about slowly,
to linger, or to lag behind when that conduct is in violation of known instructions
or accompanied by a failure to give complete attention to duty.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), did, (at/on board-location), on or about
20 , then knowing that was
a sentinel or lookout, (wrongfully use the following disrespectful language
" ," or words to that effect, to ) (wrongfully behave in a disrespectful manner toward , by ) a (sentinel) (lookout) in
the execution of his/her duty, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal
jurisdiction data), while posted as a (sentinel) (lookout), did, (at/on
board-location) (while receiving special pay under 37 U.S.C. §
(a time of war) (loiter) (wrongfully sit down) on his/her post, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
to commit a certain offense under the code other than one of the four offenses
named in Article 82;
be committed; and
the prejudice of good order and discipline in the armed forces or was a nature
to bring discredit upon the armed forces.
See paragraph 6c. If the offense solicited was
actually committed, see also paragraph 1.
See paragraph 3 of this part and Appendix 12A.
Any person subject to the code who is found guilty of soliciting
or advising another person to commit an offense which, if committed by one
subject to the code, would be punishable under the code, shall be subject
to the maximum punishment authorized for the offense solicited or advised,
except that in no case shall the death penalty be imposed nor shall the period
of confinement in any case, including offenses for which life imprisonment
may be adjudged, exceed 5 years. However, any person subject to the code
who is found guilty of soliciting or advising another person to commit the
offense of espionage (Article 106a) shall be subject to any punishment, other
than death, that a court-martial may direct.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully (solicit) (advise) (to disobey a general
regulation, to wit: ) (to steal , of a value of (about) $ , the property
of ) (to ), by , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
concealing)
See paragraph 60.
property of some value;
That the property belonged to another person;
That the property had been stolen;
That the accused then knew that the property had been stolen; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
The actual thief is not criminally liable for receiving the property
stolen; however a principal to the larceny (see paragraph
1), when not the actual thief, may be found guilty of knowingly receiving
the stolen property but may not be found guilty of both the larceny and
receiving the property.
Actual knowledge that the property was stolen is required. Knowledge
may be proved by circumstantial evidence.
Receiving stolen property is wrongful if it is without justification
or excuse. For example, it would not be wrongful for a person to receive
stolen property for the purpose of returning it to its rightful owner, or
for a law enforcement officer to seize it as evidence.
See paragraph 3 of this part and Appendix 12A.
Stolen property, knowingly receiving, buying, or concealing.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
wrongfully (receive) (buy) (conceal) , of a value
of (about) $ , the property of ,
which property, as he/she, the said , then knew,
had been stolen, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
a march, maneuvers, or similar exercise, straggled;
That the straggling was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
"Straggle" means to wander away, to stray, to become
separated from, or to lag or linger behind.
See paragraph 3 of this part and Appendix 12A.
Confinement for 3 months and forfeiture of two-thirds pay per month
for 3 months.
In that (personal
jurisdiction data), did, at , on or about 20 , while accompanying his/her organization
on (a march) (maneuvers) ( ), wrongfully straggle, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
officer(s), military commission, court of inquiry, an officer conducting
an investigation under Article 32, or an officer taking a deposition, of
or for the United States, at which a certain person was presiding;
a witness or, having so qualified, to answer a certain question;
question;
That the refusal was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
To "qualify as a witness" means that the witness declares
that the witness will testify truthfully. See R.C.M. 807;
Mil. R. Evid. 603. A good faith but legally mistaken belief in the right
to remain silent does not constitute a defense to a charge of wrongful to
testify. See also Mil. R. Evid. 301 and Section V.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
In that (personal jurisdiction
data), being in the presence of (a) (an) ((general) (special) (summary)
court-martial) (board of officer(s)) (military commission) (court of inquiry)
(officer conducting an investigation under Article 32, Uniform Code of
Military Justice) (officer taking a deposition) () (of) (for)
the United States, of which was (military judge)
(president), ( ), (and having been directed by the
said to qualify as a witness) (and having qualified
as a witness and having been directed by the said to
answer the following question(s) put to him/her as a witness,
" "), did, (at/on board-location), on or about 20 , wrongfully refuse (to qualify
as a witness) (to answer said question(s)), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
That the accused communicated certain language;
That the information communicated amounted to a threat;
That the harm threatened was to be done by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material;
That the communication was wrongful; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused communicated or conveyed certain information;
That the information communicated or conveyed concerned an attempt being made or to be made by means of an explosive; weapon of mass destruction; biological or chemical agent, substance, or weapon; or hazardous material, to unlawfully kill, injure, or intimidate a person or to unlawfully damage or destroy certain property;
That the information communicated or conveyed by the accused was false and that the accused then knew it to be false;
That the communication of the information by the accused was malicious; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
A "threat" means an expressed present determination or intent to kill, injure, or intimidate a person or to damage or destroy certain property presently or in the future. Proof that the accused actually intended to kill, injure, intimidate, damage, or destroy is not required.
"Explosive" means gunpowder, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other explosive compound, mixture, or similar material.
A weapon of mass destruction means any device, explosive or otherwise, that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of: toxic or poisonous chemicals, or their precursors; a disease organism; or radiation or radioactivity.
The term "biological agent" means any micro-organism (including bacteria, viruses, fungi, rickettsiac, or protozoa), pathogen, or infectious substance, and any naturally occurring, bioengineered, or synthesized component of any such micro-organism, pathogen, or infectious substance, whatever its origin or method of production, that is capable of causing-
death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;
deterioration of food, water, equipment, supplies, or materials of any kind; or
deleterious alteration of the environment.
A chemical agent, substance, or weapon refers to a toxic chemical and its precursors or a munition or device, specifically designed to cause death or other harm through toxic properties of those chemicals that would be released as a result of the employment of such munition or device, and any equipment specifically designed for use directly in connection with the employment of such munitions or devices.
A substance or material (including explosive, radioactive material, etiologic agent, flammable or combustible liquid or solid, poison, oxidizing or corrosive material, and compressed gas, or mixture thereof) or a group or class of material designated as hazardous by the Secretary of Transportation.
A communication is "malicious" if the accused believed that the information would probably interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or would cause fear or concern to one or more persons.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeitures of all pay and allowances, and confinement for 10 years.
In that (personal jurisdiction data)
did, (at/on board-location) on or about 20 , wrongfully communicate certain information, to wit: , which language constituted a threat to harm a person or property by means of a(n) [explosive; weapon of mass destruction; biological agent, substance, or weapon; chemical agent, substance, or weapon; and/or (a) hazardous material(s)], and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
In that (personal jurisdiction data) did, (at/on board-location), on or about 20 , maliciously (communicate) (convey) certain information concerning an attempt being made or to be made to unlawfully [(kill) (injure) (intimidate) ] [(damage) (destroy) ] by means of a(n) [explosive; weapon of mass destruction; biological agent, substance, or weapon; chemical agent, substance, or weapon; and/or (a) hazardous material(s)], to wit: , which information was false and which the accused then knew to be false, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
determination or intent to wrongfully injure the person, property, or reputation
of another person, presently or in the future;
person;
That the communication was wrongful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
To establish the threat it is not necessary that the accused actually
intended to do the injury threatened. However, a declaration made under
circumstances which reveal it to be in jest or for an innocent or legitimate
purpose, or which contradict the expressed intent to commit the act, does
not constitute this offense. Nor is the offense committed by the mere statement
of intent to commit an unlawful act not involving injury to another. _
See also_ paragraph 109 concerning bomb threat.
See paragraph 3 of this part and Appendix 12A.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
In that (personal
jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction
data, if required), on or about 20
, wrongfully communicate to a threat (injure
by ) (accuse of
having committed the offense of ) ( ), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
personal property of another which amounts to a structure usually used for
habitation or storage;
That such entry was unlawful; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
See paragraph 55 for a discussion of "entry."
An entry is "unlawful" if made without the consent of any person
authorized to consent to entry or without other lawful authority. No specific
intent or breaking is required for this offense. See paragraph
56 for a discussion of housebreaking. The property protected against unlawful
entry includes real property and the sort of personal property which amounts
to a structure usually used for habitation or storage. It would usually not
include an aircraft, automobile, tracked vehicle, or a person's locker,
even though used for storage purposes. However, depending on the circumstances,
an intrusion into such property may be prejudicial to good order and discipline.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
unlawfully enter the (dwelling house) (garage) (warehouse) (tent) (vegetable
garden) (orchard) (stateroom) ( ) of , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
See paragraph 60.
the accused's person;
That the carrying was unlawful;
That the weapon was a dangerous weapon; and
That, under the circumstances, the conduct of the accused was to
the prejudice of good order and discipline in the armed forces or was of
a nature to bring discredit upon the armed forces.
A weapon is concealed when it is carried by a person and intentionally
covered or kept from sight.
For purposes of this paragraph, a weapon is dangerous if it was
specifically designed for the purpose of doing grievous bodily harm, or it
was used or intended to be used by the accused to do grievous bodily harm.
"On or about" means the weapon was carried on the accused's
person or was within the immediate reach of the accused.
See paragraph 3 of this part and Appendix 12A.
Bad-conduct discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
In that (personal jurisdiction
data), did, (at/on board-location) (subject-matter jurisdiction data,
if required), on or about 20 ,
unlawfully carry on or about his/her person a concealed weapon, to wit:
a , and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).
Nonjudicial punishment is a disciplinary measure more serious than
the administrative corrective measures discussed in paragraph 1g, but less
serious than trial by court-martial.
Nonjudicial punishment provides commanders with an essential and
prompt means of maintaining good order and discipline and also promotes
positive behavior changes in servicemembers without the stigma of a court-martial
conviction.
Commanders are responsible for good order and discipline in their
commands. Generally, discipline can be maintained through effective leadership
including, when necessary, administrative corrective measures. Nonjudicial
punishment is ordinarily appropriate when administrative corrective measures
are inadequate due to the nature of the minor offense or the record of the
servicemember, unless it is clear that only trial by court-martial will meet
the needs of justice and discipline. Nonjudicial punishment shall be considered
on an individual basis. Commanders considering nonjudicial punishment should
consider the nature of the offense, the record of the servicemember, the
needs for good order and discipline, and the effect of nonjudicial punishment
on the servicemember and the servicemember's record.
A commander who is considering a case for disposition under Article
15 will exercise personal discretion in evaluating each case, both as to
whether nonjudicial punishment is appropriate, and, if so, as to the nature
and amount of punishment appropriate. No superior may direct that a subordinate
authority impose nonjudicial punishment in a particular case, issue regulations,
orders, or "guides" which suggest to subordinate authorities
that certain categories of minor offenses be disposed of by nonjudicial punishment
instead of by court-martial or administrative corrective measures, or that
predetermined kinds or amounts of punishments be imposed for certain classifications
of offenses that the subordinate considers appropriate for disposition by
nonjudicial punishment.
Nonjudicial punishment may be imposed for acts or omissions that
are minor offenses under the punitive articles (see Part
IV). Whether an offense is minor depends on several factors: the nature of
the offense and the circumstances surrounding its commission; the offender's
age, rank, duty assignment, record and experience; and the maximum sentence
imposable for the offense if tried by general court-martial. Ordinarily,
a minor offense is an offense which the maximum sentence imposable would
not include a dishonorable discharge or confinement for longer than 1 year
if tried by general court-martial. The decision whether an offense is "minor"
is a matter of discretion for the commander imposing nonjudicial punishment,
but nonjudicial punishment for an offense other than a minor offense (even
though thought by the commander to be minor) is not a bar to trial by court-martial
for the same offense. See R.C.M. 907(b)(2)(D)(iv). However,
the accused may show at trial that nonjudicial punishment was imposed, and
if the accused does so, this fact must be considered in determining an appropriate
sentence. See Article 15(f); R.C.M. 1001(c)(1)(B).
When nonjudicial punishment has been imposed for an offense, punishment
may not again be imposed for the same offense under Article 15._ But
see_ paragraph 1e concerning trial by court-martial.
Once nonjudicial punishment has been imposed, it may not be increased,
upon appeal or otherwise.
When a commander determines that nonjudicial punishment is appropriate
for a particular servicemember, all known offenses determined to be appropriate
for disposition by nonjudicial punishment and ready to be considered at that
time, including all such offenses arising from a single incident or course
of conduct, shall ordinarily be considered together, and not made the basis
for multiple punishments.
Except as provided in Article 43(d), nonjudicial punishment may
not be imposed for offenses which were committed more than 2 years before
the date of imposition._ See_ Article 43(c).
Nonjudicial punishment may not be imposed for an offense tried by
a court which derives its authority from the United States. Nonjudicial
punishment may not be imposed for an offense tried by a State or foreign court
unless authorized by regulations of the Secretary concerned.
measures.
Article 15 and Part V of this Manual do not apply to include, or
limit use of administrative corrective measures that promote efficiency and
good order and discipline such as counseling, admonitions, reprimands, exhortations,
disapprovals, criticisms, censures, reproofs, rebukes, extra military instruction,
and administrative withholding of privileges._ See also_ R.C.M.
be used for acts or omissions which are not offenses under the code and for
acts or omissions which are offenses under the code.
Unless otherwise provided, the service regulations and procedures of the service member shall apply.
Failure to comply with any of the procedural provisions of Part
V of this Manual shall not invalidate a punishment imposed under Article
15, unless the error materially prejudiced a substantial right of the servicemember
on whom the punishment was imposed.
The following persons may serve as a nonjudicial punishment authority
for the purposes of administering nonjudicial punishment proceedings under
this Part:
As provided by regulations of the Secretary concerned,
a commander may impose nonjudicial punishment upon any military personnel
of that command. "Commander" means a commissioned or warrant officer
who, by virtue of rank and assignment, exercises primary command authority
over a military organization or prescribed territorial area, which under
pertinent official directives is recognized as a "command." "Commander" includes a commander of a joint command. Subject
to subparagraph 1d(2) and any regulations of the Secretary concerned, the
authority of a commander to impose nonjudicial punishment as to certain types
of offenses, certain categories of persons, or in specific cases, or to impose
certain types of punishment, may be limited or withheld by a superior commander
or by the Secretary concerned.
If authorized by regulations of the Secretary concerned, an officer
in charge may impose nonjudicial punishment upon enlisted persons assigned
to that unit.
If authorized by regulations of the Secretary concerned, a commander
exercising general court-martial jurisdiction or an officer of general or
flag rank in command may delegate that commander's powers under Article 15
to a principal assistant. The Secretary concerned may define "principal
assistant."
Except in the case of a person attached to or embarked in a vessel,
punishment may not be imposed under Article 15 upon any member of the armed
forces who has, before the imposition of nonjudicial punishment, demanded
trial by court-martial in lieu of nonjudicial punishment. This right may
also be granted to a person attached to or embarked in a vessel if so authorized
by regulations of the Secretary concerned. A person is "attached to"
or "embarked in" a vessel if, at the time nonjudicial punishment
is imposed, that person is assigned or attached to the vessel, is on board
for passage, or is assigned or attached to an embarked staff, unit, detachment,
squadron, team, air group, or other regularly organized body.
If, after a preliminary inquiry (see R.C.M. 303),
the nonjudicial punishment authority determines that disposition by nonjudicial
punishment proceedings is appropriate (see R.C.M. 306:
paragraph 1 of this Part), the nonjudicial punishment authority shall cause
the servicemember to be notified. The notice shall include:
the imposition of nonjudicial punishment;
article of the code-which the member is alleged to have committed;
based or a statement that the member may, upon request, examine available
statements and evidence;
under paragraphs 4c(1) and (2) of this Part;
_ paragraph 3 of this Part), a statement that the member may demand
trial by court-martial in lieu of nonjudicial punishment, a statement of
the maximum punishment which the nonjudicial punishment authority may impose
by nonjudicial punishment; a statement that, if trial by court-martial is
demanded, charges could be referred for trial by summary, special, or general
court-martial; that the member may not be tried by summary court-martial
over the member's objection; and that at a special or general court-martial
the member has the right to be represented by counsel.
If the servicemember demands trial by court-martial (when this right
is applicable), the nonjudicial proceedings shall be terminated. It is within
the discretion of the commander whether to forward or refer charges for trial
by court-martial (see R.C.M. 306; 307; 401-407) in
such a case, but in no event may nonjudicial punishment be imposed for the
offenses affected unless the demand is voluntarily withdrawn.
If the servicemember does not demand trial by court-martial within
a reasonable time after notice under paragraph 4a of this Part, or if the
right to demand trial by court-martial is not applicable, the nonjudicial
punishment authority may proceed under paragraph 4c of this Part.
Before nonjudicial punishment may be imposed, the servicemember
shall be entitled to appear personally before the nonjudicial punishment
authority who offered nonjudicial punishment, except when appearance is
prevented by the unavailability of the nonjudicial punishment authority or
by extraordinary circumstances, in which case the servicemember shall be
entitled to appear before a person designated by the nonjudicial punishment
authority who shall prepare a written summary of any proceedings before that
person and forward it and any written matter submitted by the servicemember
to the nonjudicial punishment authority. If the servicemember requests personal
appearance, the servicemember shall be entitled to:
Be informed in accordance with Article 31(b);
Be accompanied by a spokesperson provided or arranged for by the
member unless the punishment to be imposed will not exceed extra duty for
14 days, restriction for 14 days, and an oral reprimand. Such a spokesperson
need not be qualified under R.C.M. 502(d); such spokesperson is not entitled
to travel or similar expenses, and the proceedings need not be delayed to
permit the presence of a spokesperson; the spokesperson may speak for the
servicemember, but may not question witnesses except as the nonjudicial
punishment authority may allow as a matter of discretion;
servicemember and relating to the offenses alleged;
member which the nonjudicial punishment authority has examined in connection
with the case and on which the nonjudicial punishment authority intends to
rely in deciding whether and how much nonjudicial punishment to impose;
or in writing, or both;
upon request if their statements will be relevant and they are reasonably
available. For purposes of this subparagraph, a witness is not reasonably
available if the witness requires reimbursement by the United States for
any cost incurred in appearing, cannot appear without unduly delaying the
proceedings, or, if a military witness, cannot be excused from other important
duties;
authority determines that the proceeding should be closed for good cause,
such as military exigencies or security interests, or unless the punishment
to be imposed will not exceed extra duty for 14 days, restriction for 14
days, and an oral reprimand; however, nothing in this subparagraph requires
special arrangements to be made to facilitate access to the proceeding.
Subject to the approval of the nonjudicial punishment authority,
the servicemember may request not to appear personally under paragraph
4c(1) of this Part. If such request is granted, the servicemember may submit
written matters for consideration by the nonjudicial punishment authority
before such authority's decision under paragraph 4c(4) of this Part. The
servicemember shall be informed of the right to remain silent and that matters
submitted may be used against the member in a trial by court-martial.
The Military Rules of Evidence (Part III), other than with respect
to privileges, do not apply at nonjudicial punishment proceedings. Any relevant
matter may be considered, after compliance with paragraphs 4c(1)(C) and
After considering all relevant matters presented, if the nonjudicial
punishment authority-
alleged, the nonjudicial punishment authority shall so inform the member
and terminate the proceedings;
alleged, the nonjudicial punishment authority shall:
so inform the servicemember;
inform the servicemember of the punishment imposed; and
inform the servicemember of the right to appeal (see
paragraph 7 of this Part).
investigative body.
Nonjudicial punishment may be based on the record of a court of
inquiry or other investigative body, in which proceeding the member was
accorded the rights of a party. No additional proceeding under paragraph
4c(1) of this Part is required. The servicemember shall be informed in writing
that nonjudicial punishment is being considered based on the record of the
proceedings in question, and given the opportunity, if applicable, to refuse
nonjudicial punishment. If the servicemember does not demand trial by court-martial
or has no option, the servicemember may submit, in writing, any matter in
defense, extenuation, or mitigation, to the officer considering imposing
nonjudicial punishment, for consideration by that officer to determine whether
the member committed the offenses in question, and, if so, to determine an
appropriate punishment.
The Secretary concerned may limit the power granted by Article 15
with respect to the kind and amount of the punishment authorized. Subject
to paragraphs 1 and 4 of this Part and to regulations of the Secretary concerned,
the kinds and amounts of punishment authorized by Article 15(b) may be imposed
upon servicemembers as provided in this paragraph.
Admonition and reprimand are two forms of censure intended to express
adverse reflection upon or criticism of a person's conduct. A reprimand is
a more severe form of censure than an admonition. When imposed as nonjudicial
punishment, the admonition or reprimand is considered to be punitive, unlike
the nonpunitive admonition and reprimand provided for in paragraph 1g of
this Part. In the case of commissioned officers and warrant officers, admonitions
and reprimands given as nonjudicial punishment must be administered in writing.
In other cases, unless otherwise prescribed by the Secretary concerned, they
may be administered either orally or in writing.
Restriction is the least severe form of deprivation of liberty.
Restriction involves moral rather than physical restraint. The severity of
this type of restraint depends on its duration and the geographical limits
specified when the punishment is imposed. A person undergoing restriction
may be required to report to a designated place at specified times if reasonably
necessary to ensure that the punishment is being properly executed. Unless
otherwise specified by the nonjudicial punishment authority, a person in
restriction may be required to perform any military duty.
As in the case of restriction, the restraint involved in arrest
in quarters is enforced by a moral obligation rather than by physical means.
This punishment may be imposed only on officers. An officer undergoing this
punishment may be required to perform those duties prescribed by the Secretary
concerned. However, an officer so punished is required to remain within that
officer's quarters during the period of punishment unless the limits of arrest
are otherwise extended by appropriate authority. The quarters of an officer
may consist of a military residence, whether a tent, stateroom, or other
quarters assigned, or a private residence when government quarters have not
been provided.
Correctional custody is the physical restraint of a person during
duty or nonduty hours, or both, imposed as a punishment under Article 15,
and may include extra duties, fatigue duties, or hard labor as an incident
of correctional custody. A person may be required to serve correctional custody
in a confinement facility, but if practicable, not in immediate association
with persons awaiting trial or held in confinement pursuant to trial by
court-martial. A person undergoing correctional custody may be required to
perform those regular military duties, extra duties, fatigue duties, and
hard labor which may be assigned by the authority charged with the administration
of the punishment. The conditions under which correctional custody is served
shall be prescribed by the Secretary concerned. In addition, the Secretary
concerned may limit the categories of enlisted members upon whom correctional
custody may be imposed. The authority competent to order the release of a
person from orrectional custody shall be as designated by the Secretary
concerned.
Confinement on bread and water or diminished rations involves confinement
in places where the person so confined may communicate only with authorized
personnel. The ration to be furnished a person undergoing a punishment of
confinement on bread and water or diminished rations is that specified by
the authority charged with the administration of the punishment, but the
ration may not consist solely of bread and water unless this punishment has
been specifically imposed. When punishment of confinement on bread and water
or diminished rations is imposed, a signed certificate of a medical officer
containing an opinion that no serious injury to the health of the person
to be confined will be caused by that punishment, must be obtained before
the punishment is executed. The categories of enlisted personnel upon whom
this type of punishment may be imposed may be limited by the Secretary concerned.
Extra duties involve the performance of duties in addition to those
normally assigned to the person undergoing the punishment. Extra duties may
include fatigue duties. Military duties of any kind may be assigned as extra
duty. However, no extra duty may be imposed which constitutes a known safety
or health hazard to the member or which constitutes cruel or unusual punishment
or which is not sanctioned by customs of the service concerned. Extra duties
assigned as punishment of noncommissioned officers, petty officers, or any
other enlisted persons of equivalent grades or positions designated by the
Secretary concerned, should not be of a kind which demeans their grades or
positions.
Reduction in grade is one of the most severe forms of nonjudicial
punishment and it should be used with discretion. As used in Article 15,
the phrase "if the grade from which demoted is within the promotion
authority of the officer imposing the reduction or any officer subordinate
to the one who imposes the reduction" does not refer to the authority
to promote the person concerned but to the general authority to promote to
the grade held by the person to be punished.
Forfeiture means a permanent loss of entitlement to the pay forfeited.
"Pay," as used with respect to forfeiture of pay under Article
15, refers to the basic pay of the person or, in the case of reserve component
personnel on inactive-duty, compensation for periods of inactive-duty training,
plus any sea or hardship duty pay. "Basic pay" includes no element
of pay other than the basic pay fixed by statute for the grade and length
of service of the person concerned and does not include special pay for a
special qualification, incentive pay for the performance of hazardous duties,
proficiency pay, subsistence and quarters allowances, and similar types of
compensation. If the punishment includes both reduction, whether or not
suspended, and forfeiture of pay, the forfeiture must be based on the grade
to which reduced. The amount to be forfeited will be expressed in whole dollar
amounts only and not in a number of day's pay or fractions of monthly pay.
If the forfeiture is to be applied for more than 1 month, the amount to be
forfeited per month and the number of months should be stated. Forfeiture
of pay may not extend to any pay accrued before the date of its imposition.
Arrest in quarters may not be imposed in combination with restriction;
Confinement on bread and water or diminished rations may not be
imposed in combination with correctional custody, extra duties, or restriction;
or extra duties;
but the combination may not exceed the maximum imposable for extra duties;
punishments may be imposed in a single case in the maximum amounts.
training.
When a punishment under Article 15 amounting to a deprivation of
liberty (for example, restriction, correctional custody, extra duties, or
arrest in quarters) is imposed on a member of a reserve component during
a period of inactive-duty training, the punishment may be served during one
or both of the following:
a normal period of inactive-duty training; or
a subsequent period of active duty (not including a period of active
duty under Article 2(d)(1), unless such active duty was approved by the
Secretary concerned).
Unserved punishments may be carried over to subsequent
periods of inactive-duty training or active duty. A sentence to forfeiture
of pay may be collected from active duty and inactive-duty training pay during
subsequent periods of duty.
active duty for disciplinary purposes.
When a punishment under Article 15 is imposed on a member of a
reserve component during a period of active duty to which the reservist was
ordered pursuant to R.C.M. 204 and which constitutes a deprivation of liberty
(for example, restriction, correctional custody, extra duties, or arrest
in quarters), the punishment may be served during any or all of the following:
to Article 2(d), but only where the order to active duty was approved by
the Secretary concerned;
a subsequent normal period of inactive-duty training; or
a subsequent period of active duty (not including a period of active
duty pursuant to R.C.M. 204 which was not approved by the Secretary concerned).
Unserved
punishments may be carried over to subsequent periods of inactive-duty training
or active duty. A sentence to forfeiture of pay may be collected from active
duty and inactive-duty training pay during subsequent periods of duty.
Reduction and forfeiture of pay, if unsuspended, take effect on
the date the commander imposes the punishments. Other punishments, if unsuspended,
will take effect and be carried into execution as prescribed by the Secretary
concerned.
The nonjudicial punishment authority who imposes nonjudicial punishment,
the commander who imposes nonjudicial punishment, or a successor in command
over the person punished, may, at any time, suspend any part or amount of
the unexecuted punishment imposed and may suspend a reduction in grade or
a forfeiture, whether or not executed, subject to the following rules:
suspended only within a period of 4 months after the date of execution.
months from the date of the suspension, and the expiration of the current
enlistment or term of service of the servicemember involved automatically
terminates the period of suspension.
punishment are remitted, without further action, upon the termination of
the period of suspension.
a condition that the servicemember not violate any punitive article of the
code. The nonjudicial punishment authority may specify in writing additional
conditions of the suspension.
or commander competent to impose upon the servicemember concerned punishment
of the kind and amount involved in the vacation of suspension. Vacation of
suspension may be based only on a violation of the conditions of suspension
which occurs within the period of suspension. Before a suspension may be
vacated, the servicemember ordinarily shall be notified and given an opportunity
to respond. Although a hearing is not required to vacate a suspension, if
the punishment is of the kind set forth in Article 15(e)(1)-(7), the servicemember
should, unless impracticable, be given an opportunity to appear before the
officer authorized to vacate suspension of the punishment to present any
matters in defense, extenuation, or mitigation of the violation on which
the vacation action is to be based. Vacation of a suspended nonjudicial punishment
is not itself nonjudicial punishment, and additional action to impose nonjudicial
punishment for a violation of a punitive article of the code upon which the
vacation action is based is not precluded thereby.
Mitigation is a reduction in either the quantity or quality of a
punishment, its general nature remaining the same. Mitigation is appropriate
when the offender's later good conduct merits a reduction in the punishment,
or when it is determined that the punishment imposed was disproportionate.
The nonjudicial punishment authority who imposes nonjudicial punishment,
the commander who imposes nonjudicial punishment, or a successor in command
may, at any time, mitigate any part or amount of the unexecuted portion of
the punishment imposed. The nonjudicial punishment authority who imposes
nonjudicial punishment, the commander who imposes nonjudicial punishment,
or a successor in command may also mitigate reduction in grade, whether executed
or unexecuted, to forfeiture of pay, but the amount of the forfeiture may
not be greater than the amount that could have been imposed by the officer
who initially imposed the nonjudicial punishment. Reduction in grade may
be mitigated to forfeiture of pay only within 4 months after the date of
execution.
When mitigating-
Arrest in quarters to restriction;
Confinement on bread and water or diminished rations to correctional
custody;
rations to extra duties or restriction, or both; or
for a greater period than the punishment mitigated. As restriction is the
least severe form of deprivation of liberty, it may not be mitigated to a
lesser period of another form of deprivation of liberty, as that would mean
an increase in the quality of the punishment.
Remission is an action whereby any portion of the unexecuted punishment
is cancelled. Remission is appropriate under the same circumstances as mitigation.
The nonjudicial punishment authority who imposes punishment, the commander
who imposes nonjudicial punishment, or a successor in command may, at any
time, remit any part or amount of the unexecuted portion of the punishment
imposed. The expiration of the current enlistment or term of service of the
servicemember automatically remits any unexecuted punishment imposed under
Article 15.
Setting aside is an action whereby the punishment or any part or
amount thereof, whether executed or unexecuted, is set aside and any property,
privileges, or rights affected by the portion of the punishment set aside
are restored. The nonjudicial punishment authority who imposed punishment,
the commander who imposes nonjudicial punishment, or a successor in command
may set aside punishment. The power to set aside punishments and restore
rights, privileges, and property affected by the executed portion of a punishment
should ordinarily be exercised only when the authority considering the case
believes that, under all circumstances of the case, the punishment has resulted
in clear injustice. Also, the power to set aside an executed punishment should
ordinarily be exercised only within a reasonable time after the punishment
has been executed. In this connection, 4 months is a reasonable time in the
absence of unusual circumstances.
Any servicemember punished under Article 15 who considers the punishment
to be unjust or disproportionate to the offense may appeal through the proper
channels to the next superior authority.
A "superior authority," as prescribed by the Secretary
concerned, may act on an appeal. When punishment has been imposed under
delegation of a commander's authority to administer nonjudicial punishment
(see paragraph 2c of this Part), the appeal may not be
directed to the commander who delegated the authority.
Appeals shall be in writing and may include the appellant's reasons
for regarding the punishment as unjust or disproportionate.
An appeal shall be submitted within 5 days of imposition of punishment,
or the right to appeal shall be waived in the absence of good cause shown.
A servicemember who has appealed may be required to undergo any punishment
imposed while the appeal is pending, except that if action is not taken on
the appeal within 5 days after the appeal was submitted, and if the servicemember
so requests, any unexecuted punishment involving restraint or extra duty
shall be stayed until action on the appeal is taken.
Before acting on an appeal from any punishment of the kind set forth
in Article 15(e)(1)-(7), the authority who is to act on the appeal shall
refer the case to a judge advocate or to a lawyer of the Department of Homeland Security
for consideration and advice, and may so refer the case upon appeal from
any punishment imposed under Article 15. When the case is referred, the judge
advocate or lawyer is not limited to an examination of any written matter
comprising the record of proceedings and may make any inquiries and examine
any additional matter deemed necessary.
The content, format, use, and disposition of records of nonjudicial
punishment may be prescribed by regulations of the Secretary concerned.
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our Posterity, do ordain and establish this Constitution
of the United States of America.
All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and a House of Representatives.
The House of Representatives shall be composed of Members chosen
every second year by the people of the several states, and the Electors in
each State shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.
No person shall be a
Representative who shall not have attained to the Age of twenty-five Years,
and been seven Years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State in which he shall be chosen.
This clause has been affected by the 14th and 16th amendments.
Representative and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number
of free Persons, including those bound to Service for a Term of Years, and
excluding Indians not taxed, three fifths of all other Persons. The actual
Enumeration shall be made within three Years after the first Meeting of
the Congress of the United States, and within every subsequent Term of ten
Years in such Manner as they shall by Law direct. The Number of Representative
shall not exceed one for every thirty Thousand, but each state shall have
at Least one Representative; and until such enumeration shall be made, the
state of New Hampshire shall be entitled to choose three, Massachusetts eight,
Rhode Island and Providence Plantations one, Connecticut five, New York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia
ten, North Carolina five, South Carolina five, and Georgia three.
When
vacancies happen in the Representation from any state, the Executive Authority
thereof shall issue Writs of Election to fill such Vacancies.
The
House of Representatives shall choose the Speaker and other officers; and
shall have the sole power of Impeachment.
This section has been affected by the 17th amendment
The Senate of the United States shall be composed of two Senators
from each State chosen by the Legislature thereof, for six Years and each
Senator shall have one Vote.
Immediately after they shall be
assembled in Consequence of the first Election, they shall be divided as
equally as may be into three Classes. The Seats of the Senators of the first
Class shall be vacated at the Expiration of the second Year, of the second
Class at the Expiration of the fourth Year, and of the third Class at the
Expiration of the sixth Year, so that one third may be chosen every second
Year; and if Vacancies happen by Resignation, or otherwise during the Recess
of the Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall then
fill such Vacancies.
No person shall be a Senator who shall not
have attained to the Age of thirty Years, and been nine Years a Citizen
of the United States, who shall not, when elected, be an Inhabitant of that
State for which he shall be chosen.
The Vice-President of the
United States shall be President of the Senate, but shall have no Vote unless
they be equally divided.
The Senate shall choose their other Officers,
and also a President pro tempore, in the Absence of the Vice-President,
or when he shall exercise the Office of President of the United States.
The
Senate shall have the sole Power to try all Impeachments. When sitting for
that Purpose, they shall be on Oath or Affirmation. When the President of
the United States is tried, the Chief Justice shall preside: And no Person
shall be convicted without the Concurrence of two-thirds of the Members present.
Judgement
in Cases of Impeachment shall not extend further than to removal from Office
and disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States; but the Party convicted shall nevertheless be liable
and subject to Indictment, Trial, Judgment and Punishment, according to
Law.
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof: but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of choosing Senators.
This clause has been affected by the 20th amendment The Congress
shall assemble at least once in every Year, and such Meeting shall be on
the first Monday in December, unless they shall by Law appoint a different
Day.
Each House shall be the Judge of the Elections, Returns and Qualifications
of its own Members, and a Majority of each shall constitute a Quorum to do
Business; but a smaller Number may adjourn from day to day, and may be authorized
to compel the Attendance of absent Members, in such Manner, and under such
Penalties as each House may provide.
Each House may determine
the Rules of its Proceedings, punish its Members for disorderly Behaviour,
and with the Concurrence of two-thirds, expel a Member.
Each
House shall keep a Journal of its Proceedings, and from time to time publish
the same, excepting such Parts as may in their Judgment require Secrecy;
and the Yeas and Nays of the Members either House on any question shall,
at the Desire of one fifth of those Present be entered on the Journal.
Neither
House, during the Session of Congress shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in which
the two Houses shall be sitting.
The Senators and Representatives shall receive a Compensation for
their Services, to be ascertained by Law, and paid out of the Treasury of
the United States. They shall in all Cases, except Treason, Felony and Breach
of the Peace, be privileged from Arrest during their Attendance at the Session
of their respective Houses, and in going to and returning from the same;
and for any Speech or Debate in either House, they shall not be questioned
in any other Place.
No Senator or Representative shall, during
the Time for which he is elected, be appointed to any Civil Office under
the Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been increased during such time; and no Person
holding any Office under the United States, shall be a Member of either House
during his Continuance in Office.
All Bills for raising Revenue shall originate in the House of Representatives;
but the Senate may propose or concur with Amendments as on other Bills.
Every
Bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United
States; if he approve he shall sign it, but if not he shall return it, with
his Objections to that House in which it shall have originated, who shall
enter the Objections at large on their Journal, and proceed to reconsider
it. If after such Reconsideration two-thirds of that House shall agree to
pass the Bill, it shall be sent, together with the Objections, to the other
House, by which is shall likewise be reconsidered, and if approved by two-thirds
of that House, it shall become a Law. But in all such Cases the Votes of
Both Houses shall be determined by Yeas and Nays, and the Names of the Persons
voting for and against the Bill shall be entered on the Journal of each House
respectively. If any Bill shall not be returned by the President within
ten Days (Sundays excepted) after it shall have been presented to him, the
Same shall be a Law, in like Manner as if he had signed it, unless the Congress
by their Adjournment prevent its Return, in which Case it shall not be a
Law.
Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representative may be necessary (except on a question
of Adjournment) shall be presented to the President of the United States;
and before the Same shall take Effect, shall be approved by him,or being
disapproved by him, shall be repassed by two thirds of the Senate and House
of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill.
The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States.
To borrow Money
on the credit of the United States; To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes;
To
establish an uniform rule of Naturalization, and uniform Laws on the subject
of Bankruptcies throughout the United States;
To coin Money,
regulate the Value thereof, and of foreign coin,and fix the Standard of Weights
and Measures;
To provide for the Punishment of counterfeiting
the Securities and current Coin of the United States;
To establish
Post Offices and post Roads;
To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries;
To
constitute Tribunals inferior to the supreme Court;
To define
and punish Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations;
To declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To
raise and support Armies, but no Appropriation of Money to that use shall
be for a longer Term than two Years;
To provide and maintain
a Navy;
To make Rules for the Government and Regulation of the
land and naval Forces;
To provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections and repel Invasions.;
To
provide for organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the Officers, and
the Authority of training the Militia according to the discipline prescribed
by Congress;
To exercise exclusive Legislation in all Cases whatsoever,
over such District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress,become the Seat of the
Government of the United States, and to exercise like Authority over all
Places purchased by the Consent of the Legislature of the States in which
the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,
and other needful Buildings; And
To make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by the Constitution in the Government of the
United States, or in any Department or Officer thereof.
The Migration or Importation of such Persons as any of the States
now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the Year one thousand eight hundred and eight, but a Tax
or duty may be imposed on such Importation, not exceeding ten dollars for
each Person.
Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety
require it.
No Bill of Attainder or ex post facto Law shall be
passed.
No Capitation, or other direct, Tax shall be laid, unless
in Proportion to the Census or Enumeration herein before directed to be taken.
No
Tax or Duty shall be laid on Articles exported from any State.
No
Preference shall be given by any Regulation of Commerce or Revenue to the
Ports of one State over those of another: nor shall Vessels bound to, or
from, one State, be obliged to enter, clear, or pay Duties in another.
No
Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law; and a regular Statement and Account of the Receipts and Expenditures
of all public Money shall be published from time to time.
No
Title of Nobility shall be granted by the United States: And no Person holding
any Office of Profit or Trust under them, shall, without the Consent of
the Congress, accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.
No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts; pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
No State shall, without
the Consent of the Congress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing its inspection Laws;
and the net Produce of all Duties and Imports, laid by any State on Imports
or Exports, shall be for the Use of the Treasury of the United States; all
such Laws shall be subject to the Revision and Control of the Congress.
No
State shall, without the Consent of Congress, lay any Duty of Tonnage, keep
Troops, or Ships of War in time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay.
The executive Power shall be vested in a President of the United
States and, together with the Vice President,chosen for the same Term, be
elected as follows.
Each State shall appoint, in such Manner
as the Legislature thereof may direct, a Number of Electors, equal to the
whole Number of Senators and Representatives to which the State may be entitled
in the Congress: but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall be appointed an
Elector.
This clause has been affected by the
12th amendment. The Electors shall meet in their respective States,
and vote by Ballot for two Persons, of whom one at least shall not be an
Inhabitant of the same State with themselves. And they shall make a List
of all the Persons voted for, and of the Number of Votes for each; which
List they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the Presence of the Senate and House
of Representatives, open all the Certificates, and the Votes shall then be
counted. The Person having the greatest Number of Votes shall be the President,
if such Number be a Majority of the whole Number of Electors appointed; and
if there be more than one who have such Majority, and have an equal Number
of Electors appointed; and if there be more than one who have such Majority,
and have an equal Number of Votes, then the House of Representatives shall
immediately choose by Ballot one of them for President; and if no Person
have a Majority, then from the five highest on the List the said House shall
in like Manner choose the President. But in choosing the President, the
Votes shall be taken by States, the Representation from each State having
one Vote; a quorum for this Purpose shall consist of a Member or Members
from two thirds of the States, and a Majority of all the states shall be
necessary to a choice. In every case, after the Choice of the President,
the Person having the greatest Number of Votes of the Electors shall be
the Vice President. But if there should remain two or more who have equal
Votes, the Senate shall choose from them by Ballot the Vice President.
The
Congress may determine the Time of the choosing the Electors, and the Day
on which they shall give their Votes; which Day shall be the same throughout
the United States.
No Person except a natural born Citizen,
or a Citizen of the United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President;neither shall any Person be
eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United States.
In
Case of the Removal of the President from Office, or his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office, the
Same shall devolve on the Vice President, and the Congress may by Law provide
for the Case of Removal, Death, Resignation or Inability, both of the President
and Vice President, declaring what Officer shall then act as President,
and such Officer shall act accordingly, until the Disability be removed,
or a President be elected.
The President shall, at stated Times,
receive for his Services,a Compensation, which shall neither be increased
nor diminished during the Period for which he shall have been elected, and
he shall not receive within a Period any other Emolument from the United
States, or any of them.
Before he enter on the Execution of his
Office, he shall take the following Oath or Affirmation: "I do solemnly
swear (or affirm) that I will faithfully execute the Office of President
of the United States, and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States. "
The President shall be Commander in Chief of the Army and Navy
of the United States, and of the Militia of the several States, when called
into the actual Service of the United States; he may require the Opinion,
in writing of the principal Officer in each of the executive Departments,
upon any Subject relating to the Duties of their respective Offices, and
he shall have power to grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.
He shall have
Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint Ambassadors,other
public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law. But the Congress may
by law vest the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of Departments.
The
President shall have Power to fill up all Vacancies that may happen during
the Recess of the Senate, by granting Commissions which shall expire at
the End of their next Session.
He shall from time to time give to the Congress Information of
the State of the Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient; he may, on extraordinary Occasions,
convene both Houses, or either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he may adjourn them to such
Time as he shall think proper; he shall receive Ambassadors and other public
Ministers; he shall take Care that the Laws be faithfully executed, and shall
Commission all the Officers of the United States.
The President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors.
The judicial Power of the United States shall be vested in one
Supreme Court, and in such inferior courts as the Congress may from time
to time ordain and establish. The Judges, both of the Supreme and inferior
Courts, shall hold their Offices during good Behavior, and shall, at stated
Times, receive for their Services a Compensation which shall not be diminished
during their Continuance in Office.
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority; to all Cases affecting
Ambassadors, other public Ministers, and Consuls; to all Cases of admiralty
and maritime Jurisdiction; to Controversies to which the United States shall
be a Party; to Controversies between two or more States, between a State
and Citizens of another State, between Citizens of different States, between
Citizens of the same State claiming Lands under Grants of different States,
and between a State or the Citizens thereof, and foreign States, Citizens,
or Subjects.
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be a Party, the Supreme
Court shall have original Jurisdiction. In all the other Cases before mentioned,
the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions and under such Regulations as the Congress shall make.
The
Trial of all Crimes, except in Cases of Impeachment,shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State the Trial shall be at
such Place or Places as the Congress may by Law have directed.
Treason against the United States shall consist only in levying
War against them, or in adhering to their Enemies,giving them Aid and Comfort.
No Person shall be convicted of Treason unless on the Testimony of two Witnesses
to the same overt Act, or on Confession in open Court.
The Congress
shall have Power to declare the Punishment of Treason, but no Attainder of
Treason shall work Corruption of Blood, or Forfeiture except during the
Life of the Person attained.
Full Faith and Credit shall be given in each State to the public
Act, Records, and judicial Proceedings of every other State. And the Congress
may, by general Laws, prescribe the Manner in which such Acts, Records,
and Proceedings shall be proved, and the Effect thereof.
The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.
A Person charged
in any State with Treason, Felony, or other Crime, who shall flee from Justice,
and be found in another State, shall, on Demand of the executive Authority
of the State from which he fled, be delivered up, to be removed to the State
having Jurisdiction of the Crime.
No Person held to Service or
Labor in one State, under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be discharged from such
Service or Labor, but shall be delivered up on Claim of the Party to whom
such Service or Labor may be due.
New States may be admitted by the Congress into this Union; but
no new State shall be formed or erected within the Jurisdiction of any other
State, nor any State be formed by the Junction of two or more States, or
Parts of States, without the Consent of the Legislatures of the States concerned
as well as of the Congress.
The Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States; and nothing in this Constitution
shall be so construed as to Prejudice any Claims of the United States, or
of any particular State.
The United States shall guarantee to every State in this Union
a Republican Form of Government, and shall protect each of them against Invasion;
and on Application of the Legislature, or of the Executive (when the Legislature
cannot be convened), against domestic Violence.
The Congress, whenever two thirds of both House shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of
the Legislatures of two thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall be valid, to all intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures
of three fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be proposed by
the Congress; Provided that no Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that no
State, without its Consent, shall be deprived of its equal Suffrage in the
Senate.
All Debts contracted and Engagements entered into,before the Adoption
of this Constitution, shall be as valid against the United States under this
Constitution, as under the Confederation.
This Constitution,
and the Laws of the United States which shall be made in Pursuance thereof,
and all Treaties made,or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, Anything in the Constitution or Laws of any
State to the Contrary notwithstanding.
The Senators and Representatives
before mentioned, and the Members of the several State Legislatures, and
all executive and judicial Officers, both of the United States and of the
several States, shall be bound, by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.
The Ratification of the Conventions of nine States shall be sufficient
for the Establishment of this Constitution between the States so ratifying
the Same.
_ Articles in Addition to, and Amendment of,
the Constitution of the United States of America, Proposed by Congress,
and Ratified by the Legislatures of the Several States Pursuant to the Fifth
Article of the Original Constitution_
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
A well-regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace, be quartered in any house,
without the consent of the Owner; nor in time of war, but in a manner to
be prescribed by law.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated; and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched
and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous,
crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service,
in time of War, or public danger; nor shall any person be subject, for the
same offence, to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself nor be deprived
of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been
previously ascertained by law; and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor; and to have the
Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved; and no fact,
tried by a jury, shall be otherwise reexamined in any Court of the United
States than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishment inflicted.
The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively
or to the people.
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State or by Citizens or Subjects
of any Foreign State.
The Electors shall meet in their respective States, and vote by
ballot for President and Vice-President, one of whom, at least, shall not
be an inhabitant of the same State with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the person
voted for as Vice-President; and they shall make distinct lists of all persons
voted for as President, and of all persons voted for as Vice-President,
and of the number of votes for each, which lists they shall sign, and certify,
and transmit, sealed, to the seat of the government of the United States,
directed to the President of the Senate; the President of the Senate shall,
in the presence of the Senate and the House of Representatives, open all
the certificates, and the votes shall then be counted; the person having
the greatest number of votes for President shall be the President, if such
number be a majority of the whole number of Electors appointed; and if no
person have such a majority, then, from the persons having the highest numbers,
not exceeding three, on the list of those voted for a President, the House
of Representatives shall choose immediately, by ballot, the President. But
in choosing the President, the votes shall be taken by States, the representation
from each State having one vote; a quorum for this purpose shall consist
of a member or members from two-thirds of the States, and a majority of
all the States shall be necessary to a choice. And if the House of Representatives
shall not choose a President, whenever the right of choice shall devolve
upon them, before the fourth day of March next following, the Vice-President
shall act as President, as in case of death, or other constitutional disability
of the President. The person having the greatest number of votes as Vice-President,
shall be the Vice-President, if such number be a majority of the whole number
of Electors appointed; and if no person have a majority, then, from the
two highest numbers on the list, the Senate shall choose the Vice-President;
a quorum for the purpose shall consist of two-thirds of the whole number
of Senators; a majority of the whole number shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall
be eligible to that of Vice-President of the United States.
Neither slavery nor involuntary servitude, except as a punishment
for crime, whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate
legislation.
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law, nor deny any person within its jurisdiction the equal
protection of the laws.
Representatives shall be apportioned among the several States according
to their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any election
for the choice of electors for President and Vice-President of the United
States, Representatives in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature thereof, is denied to any of
the male inhabitants of such State, being twenty one years of age, and citizens
of the United States, or in any way abridged, except for participation in
rebellion or other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty one years of age in such State.
No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken
an oath, as a Member of Congress, or as an officer of the United States,
or as a member of any State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may, by a vote of two thirds of each
House, remove such disability.
The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any State shall assume or pay any debt
or obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all
such debts, obligations, and claims shall be held illegal and void.
The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate
legislation.
The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the several States
and without regard to any census or enumeration.
The Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof, for six years; and each Senator
shall have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.
When
vacancies happen in the representation of any State in the Senate, the executive
authority of such State shall issue writs of election to fill such vacancies:
Provided, That the legislature of any State may empower the executive thereof
to make temporary appointment until the people fill the vacancies by election
as the legislature may direct.
This amendment shall not be so
construed as to affect the election or term of any Senator chosen before
it becomes valid as part of the Constitution.
This article was replaced by the 21st amendment
After one year from the ratification of this article the manufacture,
sale or transportation of intoxicating liquors within, the importation thereof
into, or the exportation thereof from the United States and all territory
subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
The Congress and the several States shall have concurrent power
to enforce this article by appropriate legislation.
This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of the several States,
as provided in the Constitution, within seven years of the date of the submission
hereof to the States by Congress.
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of sex.
Congress
shall have power to enforce this article by appropriate legislation.
The terms of the President and Vice President shall end at noon
on the 20th day of January, and the terms of Senators and Representatives
at noon on the 3d day of January, of the years in which such terms would
have ended if this article had not been ratified; and the terms of their
successors shall then begin.
The Congress shall assemble at least once in every year, and such
meeting shall begin at noon on the 3d day of January, unless they shall by
law appoint a different day.
If, at the time fixed for the beginning of the term of the President,
the President-elect shall have died, the Vice President-elect shall become
President. If a President shall not have been chosen before the time fixed
for the beginning of his term, or if the President-elect shall have failed
to qualify, then the Vice President-elect shall act as President until a
President shall have qualified; and the Congress may by law provide for the
case wherein neither a President-elect nor a Vice President-elect shall have
qualified, declaring who shall then act as President, or the manner in which
one who is to act shall be selected, and such person shall act accordingly
until a President or Vice President shall have qualified.
The Congress may by law provide for the case of the death of any
of the persons from whom the House of Representatives may choose a President
whenever the right of choice shall have devolved upon them, and for the
case of the death of any of the persons from whom the Senate may choose a
Vice President whenever the right of choice shall have devolved upon them.
Sections 1 and 2 shall take effect on the 15th day of October following
the ratification of this article.
This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by three fourths of the several States
within seven years from the date of its submission.
The eighteenth article of amendment to the Constitution of the
United States is hereby repealed.
The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby prohibited.
This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by conventions in the several States,
as provided in the Constitution, within seven years from the date of the
submission hereof to the States by the Congress.
No person shall be elected to the office of the President more
than twice, and no person who has held the office of President, or acted
as President, for more than two years of a term to which some other person
was elected President shall be elected to the office of the President more
than once. But this Article shall not apply to any person holding the office
of President when this Article was proposed by the Congress, and shall not
prevent any person who may be holding the office of President, or acting
as President, during the term within which his Article becomes operative
from holding the office of President or acting as President during the remainder
of such term.
This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of three-fourths
of the several States within seven years from the date of its submission
to the States by the Congress.
The District constituting the seat of Government of the United
States shall appoint in such manner as the Congress may direct:
A
number of electors of President and Vice President equal to the whole number
of Senators and Representative in Congress to which the District would be
entitled if it were a State, but in no event more than the least populous
State; they shall be considered, for the purposes of the election of President
and Vice President, to be electors appointed by a State; and they shall
meet in the District and perform such duties as provided by the twelfth article
of amendment.
The Congress shall have power to enforce this article by appropriate
legislation.
The right of citizens of the United States to vote in any primary
or other election for President or Vice President, for electors for President
or Vice President, or for Senator or Representative in Congress, shall not
be denied or abridged by the United States or any State by reason of failure
to pay any poll tax or other tax.
The Congress shall have power to enforce this article by appropriate
legislation.
In case of the removal of the President from office or of his death
or resignation, the Vice President shall become President.
Whenever there is a vacancy in the office of the Vice President,
the President shall nominate a Vice President who shall take office upon
confirmation by a majority vote of both Houses of Congress.
Whenever the President transmits to the President pro tempore of
the Senate and the Speakers of the House of Representatives his written declaration
that he is unable to discharge the powers and duties of his office, and
until he transmits to them a written declaration to the contrary, such powers
and duties shall be discharged by the Vice President as Acting President.
Whenever the Vice President and a majority of either the principal
officers of the Executive departments or of such other body as Congress may
by law provide, transmit to the President pro tempore of the Senate and
the Speaker of the House of Representatives their written declaration that
the President is unable to discharge the powers and duties of his office,
the Vice President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits
to the President pro tempore of the Senate and the Speaker of the House
of Representatives his written declaration that no inability exists, he shall
resume the powers and duties of his office unless the Vice President and
a majority of either principal officers of the executive department or of
such other body as Congress may by law provide, transmit within four days
to the President pro tempore of the Senate and the Speaker of the House
of Representatives their written declaration that the President is unable
to discharge the powers and duties of his office. Thereupon Congress shall
decide the issue, assembling within forty eight hours for that purpose if
not in session. If the Congress, within twenty one days after Congress is
required to assemble, determines by two thirds vote of both Houses that
the President is unable to discharge the powers and duties of his office,
the Vice President shall continue to discharge the same as Acting President;
otherwise, the President shall resume the powers and duties of his office.
The right of citizens of the United States, who are eighteen years
of age or older, to vote shall not be denied or abridged by the United States
or by any State on account of age.
The Congress shall have the power to enforce this article by appropriate
legislation.
No law, varying the compensation for the services of the Senators
and Representatives, shall take effect, until an election of Representatives
shall have intervened.
Subchapter
Sec.
Art.
I.
General Provisions
801
1
Apprehension and Restraint
807
7
Non-Judicial Punishment
815
15
Court-Martial Jurisdiction
816
16
V.
Composition of Courts-Martial
822
22
Pretrial Procedure
830
30
Trial Procedure
836
36
Sentences
855
55
Post-Trial Procedure and Review of Courts-Martial
859
59
X.
Punitive Articles
877
77
Miscellaneous Provisions
935
135
Court of Appeals for the Armed Forces
941
141
Sec.
Art.
Definitions.
Persons subject to this chapter.
Jurisdiction to try certain personnel.
Dismissed officer's right to trial by court-martial
Territorial applicability of this chapter.
Judge advocates and legal officers.
806a.
6a.
Investigations and disposition of matters pertaining to the
fitness of military judges.
806b.
6b.
Rights of the victim of an offense under this chapter.
In this chapter-
the Judge Advocates General of the Army, Navy, and Air Force and, except
when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
as a service in the Navy, shall be considered as one armed force.
officers.
Navy, the Marine Corps, or the Coast Guard designated as such by appropriate
authority.
officer superior in rank or command.
Military Academy, the United States Air Force Academy, or the United States
Coast Guard Academy.
States Naval Academy and any other midshipman on active duty in the naval
service.
forces.
to charges, any person who directs that charges nominally be signed and
sworn to by another, and any other person who has an interest other than
an official interest in the prosecution of the accused.
or special court-martial detailed in accordance with section 826 of this
title (article 26).
[Note: The definition for "law specialist" was repealed by Public Law 109-241,
title II, § 218(a)(1), July 11, 2006, 120 Stat. 256. The text was stricken but subsequent paragraphs were not renumbered.]
of the Navy, Marine Corps, or Coast Guard designated to perform legal duties
for a command.
the Navy;
as a judge advocate; or
proceedings of a court-martial, means-
relating to the proceedings; or
sound, or sound and visual images, depicting the proceedings may be reproduced.
of the United States pursuant to law, an Executive order, or regulation to
require protection against unauthorized disclosure for reasons of national
security, and
Energy Act of 1954 (42 U.S.C. 2014(y)).
and foreign relations of the United States.
awaiting discharge after expiration of their terms of enlistment; volunteers
from the time of their muster or acceptance into the armed forces; inductees
from the time of their actual induction into the armed forces; and other
persons lawfully called or ordered into, or to duty in or for training in,
the armed forces, from the dates when they are required by the terms of
the call or order to obey it.
Cadets, aviation cadets, and midshipmen.
Members of a reserve component while on inactive-duty training,
but in the case of members of the Army National Guard of the United States
or the Air National Guard of the United States only when in Federal service.
are entitled to pay.
from an armed force.
Members of the Fleet Reserve and Fleet Marine Corps Reserve.
Persons in custody of the armed forces serving a sentence imposed
by a court-martial.
Public Health Service, and other organizations, when assigned to and serving
with the armed forces.
Prisoners of war in custody of the armed forces.
In time of declared war or contingency operation, persons serving with or accompanying an armed force
in the field.
or may be a party or to any accepted rule of international law, persons serving
with, employed by, or accompanying the armed forces outside the United States
and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
or may be a party or to any accepted rule of international law, persons within
an area leased by or otherwise reserved or acquired for the use of the United
States which is under the control of the Secretary concerned and which is
outside the United States and outside the Canal Zone, the Commonwealth of
Puerto Rico, Guam, and the Virgin Islands.
understand the significance of enlisting in the armed forces shall be valid
for purposes of jurisdiction under subsection (a) and a change of status
from civilian to member of the armed forces shall be effective upon the taking
of the oath of enlistment.
an armed force who-
submitted voluntarily to military authority;
met the mental competence and minimum age qualifications
of sections 504 and 505 of this title at the time of voluntary submission
to military authority;
received military pay or allowances; and
performed military duties;
is subject to this chapter until such person's active service has
been terminated in accordance with law or regulations promulgated by the
Secretary concerned.
(d)(1) A member of a reserve component who is not on active duty and who
is made the subject of proceedings under section 81 (article 15) or section
830 (article 30) with respect to an offense against this chapter may be
ordered to active duty involuntarily for the purpose of-
a preliminary hearing under section 832 of this title (article 32);
trial by court-martial; or
nonjudicial punishment under section 815 of this title (article
15).
under paragraph (1) except with respect to an offense committed while the
member was
on active duty; or
on inactive-duty training, but in the case of members of the Army
National Guard of the United States or the Air National Guard of the United
States only when in Federal service.
shall be exercised under regulations prescribed by the President.
by a person empowered to convene general courts-martial in a regular component
of the armed forces.
order to active duty was approved by the Secretary concerned, may not
be sentenced to confinement; or
be required to serve a punishment consisting of any restriction
on liberty during a period other than a period of inactive-duty training
or active duty (other than active duty ordered under paragraph (l)).
of this title (article 76b(d)(2).
is in a status in which the person is subject to this chapter and who committed
an offense against this chapter while formerly in a status in which the
person was subject to this chapter is not relieved from amenability to the
jurisdiction of this chapter for that offense by reason of a termination
of that person's former status.
with having fraudulently obtained his discharge is, subject to section 843
of this title (article 43), subject to trial by court-martial on that charge
and is after apprehension subject to this chapter while in the custody of
the armed forces for that trial. Upon conviction of that charge he is subject
to trial by court-martial for all offenses under this chapter committed
before the fraudulent discharge.
from amenability to the jurisdiction of this chapter by virtue of a separation
from any later period of service.
is not, by virtue of the termination of a period of active duty or inactive-duty
training, relieved from amenability to the jurisdiction of this chapter
for an offense against this chapter committed during such period of active
duty or inactive-duty training.
makes a written application for trial by court-martial setting forth, under
oath, that he has been wrongfully dismissed, the President, as soon as practicable,
shall convene a general court-martial to try that officer on the charges
on which he was dismissed. A court-martial so convened has jurisdiction
to try the dismissed officer on those charges, and he shall be considered
to have waived the right to plead any statute of limitations applicable to
any offense with which he is charged. The court-martial may, as part of
its sentence, adjudge the affirmance of the dismissal, but if the court-martial
acquits the accused or if the sentence adjudged, as finally approved or
affirmed, does not include dismissal or death, the Secretary concerned shall
substitute for the dismissal ordered by the President a form of discharge
authorized for administrative issue.
six months from the preparation of an application for trial under this article,
the Secretary concerned shall substitute for the dismissal order by the
President a form of discharge authorized for administrative issue.
the President alone may reappoint the officer to such commissioned grade
and with such rank as, in the opinion of the President, that former officer
would have attained had he not been dismissed. The reappointment of such
a former officer shall be without regard to the existence of a vacancy and
shall affect the promotion status of other officers only insofar as the
President may direct. All time between the dismissal and the reappointment
shall be considered as actual service for all purposes, including the right
to pay and allowances.
action or is dropped from the rolls by order of the President, he has no
right to trial under this article.
This chapter applies in all places.
The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall make frequent inspection in the field in supervision of the administration of military justice.
Convening authorities shall at all times communicate directly with
their staff judge advocates or legal officers in matters relating to the
administration of military justice; and the staff judge advocate or legal
officer of any command is entitled to communicate directly with the staff
judge advocate or legal officer of a superior or subordinate command, or
with the Judge Advocate General.
assistant trial counsel, defense counsel, assistant defense counsel, or investigating
officer in any case may later act as a staff judge advocate or legal officer
to any reviewing authority upon the same case.
(d)(1) A judge advocate who is assigned or detailed to perform the functions
of a civil office in the Government of the United States under section 973(b)(2)(B)
of this title may perform such duties as may be requested by the agency
concerned, including representation of the United States in civil and criminal
cases.
respect to the Coast Guard when it is not operating as a service in the Navy,
shall prescribe regulations providing that reimbursement may be a condition
of assistance by judge advocates assigned or detailed under section 973(b)(2)(B)
of this title.
of military judges
and disposition of charges, allegations, or information pertaining to the
fitness of a military judge or military appellate judge to perform the duties
of the judge's position. To the extent practicable, the procedures shall
be uniform for all armed forces.
pursuant to this section to the Committees on Armed Services of the Senate
and the Committee on Armed Services of the House of Representatives.
The right to be reasonably protected from the accused.
The right to reasonable, accurate, and timely notice of any of the following:
A public hearing concerning the continuation of confinement prior to trial of the accused.
A preliminary hearing under section 832 of this title (article 32) relating to the offense.
A court-martial relating to the offense.
A public proceeding of the service clemency and parole board relating to the offense.
The release or escape of the accused, unless such notice may endanger the safety of any person.
The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
The right to be reasonably heard at any of the following:
A public hearing concerning the continuation of confinement prior to trial of the accused.
A sentencing hearing relating to the offense.
A public proceeding of the service clemency and parole board relating to the offense.
The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).
The right to receive restitution as provided in law.
The right to proceedings free from unreasonable delay.
The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.
an offense under this chapter" means an individual who has suffered direct physical,
emotional, or pecuniary harm as a result of the commission of an offense under this
chapter (the Uniform Code of Military Justice).
Appointment of Individuals to Assume Rights for Certain Victims. -In the case of a victim of an offense under this chapter who is under 18 years of age (but who is not a member of the armed forces), incompetent, incapacitated, or deceased, the military judge shall designate a representative from among the representatives of the estate of the victim, a family member, or another suitable individual to assume the victim's rights under this section. However, in no event may the individual so designated be the accused.
Rule of Construction. -Nothing in this section (article) shall be construed-
to authorize a cause of action for damages; or
to create, to enlarge, or to imply any duty or obligation to any victim of an
offense under this chapter or other person for the breach of which the United States or
any of its officers or employees could be held liable in damages.
If the victim of an offense under this chapter believes that a court-martial ruling violates the victim's rights afforded by a Military Rule of Evidence specified in paragraph (2), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.
Paragraph (1) applies with respect to the protections afforded by the following:
Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
Military Rule of Evidence 412, relating to the admission of evidence regarding a
victim's sexual background.
Sec.
Art.
Apprehension
Apprehension of deserters.
Imposition of restraint.
Restraint of persons charged with offenses.
Reports and receiving of prisoners.
Confinement with enemy prisoners prohibited.
Punishment prohibited before trial.
Delivery of offenders to civil authorities.
Apprehension is the taking of a person into custody.
Any person authorized under regulations governing the armed forces
to apprehend persons subject to this chapter or to trial thereunder may do
so upon reasonable belief that an offense has been committed and that the
person apprehended committed it.
officers have authority to quell quarrels, frays and disorders among persons
subject to this chapter and to apprehend persons subject to this chapter
who take part therein.
Any civil officer having authority to apprehend offenders under
the laws of the United States or of a State, Commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter
from the armed forces and deliver him into the custody of those forces.
a punishment for an offense, directing him to remain within certain specified
limits. Confinement is the physical restraint of a person.
any commissioned officer by an order, oral or written, delivered in person
or through other persons subject to this chapter. A commanding officer may
authorize warrant officers, petty officers, or noncommissioned officers to
order enlisted members of his command or subject to his authority into arrest
or confinement.
to this chapter or to trial thereunder may be ordered into arrest or confinement
only by a commanding officer to whose authority he is subject, by an order,
oral or written, delivered in person or by another commissioned officer.
The authority to order such persons into arrest or confinement may not be
delegated.
probable cause.
to apprehend offenders to secure the custody of an alleged offender until
proper authority may be notified.
Any person subject to this chapter charged with an offense under
this chapter shall be ordered into arrest or confinement, as circumstances
may require; but when charged only with an offense normally tried by a summary
court-martial, he shall not ordinarily be placed in confinement. When any
person subject to this chapter is placed in arrest or confinement prior
to trial, immediate steps shall be taken to inform him of the specific wrong
of which he is accused and to try him or to dismiss the charges and release
him.
refuse to receive or keep any prisoner committed to his charge by a commissioned
officer of the armed forces, when the committing officer furnishes a statement,
signed by him, of the offense charged against the prisoner.
prisoner is committed shall, within twenty-four hours after that commitment
or as soon as he is relieved from guard, report to the commanding officer
the name of the prisoner, the offense charged against him, and the name of
the person who ordered or authorized the commitment.
No member of the armed forces may be placed in confinement in immediate
association with enemy prisoners or other foreign nationals not members of
the armed forces.
No person, while being held for trial, may be subjected to punishment
or penalty other than arrest or confinement upon the charges pending against
him, nor shall the arrest or confinement imposed upon him be any more rigorous
than the circumstances required to insure his presence, but he may be subjected
to minor punishment during that period for infractions of discipline.
such additional regulations as may be prescribed by the Secretary concerned,
limitations may be placed on the powers granted by this article with respect
to the kind and amount of punishment authorized, the categories of commanding
officers and warrant officers exercising command authorized to exercise those
powers, the applicability of this article to an accused who demands trial
by court-martial, and the kinds of courts-martial to which the case may be
referred upon such a demand. However, except in the case of a member attached
to or embarked in a vessel, punishment may not be imposed upon any member
of the armed forces under this article if the member has, before the imposition
of such punishment, demanded trial by court-martial in lieu of such punishment.
Under similar regulations, rules may be prescribed with respect to the suspension
of punishments authorized hereunder. If authorized by regulations of the
Secretary concerned, a commanding officer exercising general court-martial
jurisdiction or an officer of general or flag rank in command may delegate
his powers under this article to a principal assistant.
to or in lieu of admonition or reprimand, impose one or more of the following
disciplinary punishments for minor offenses without the intervention of a
court-martial-
from duty, for not more than 30 consecutive days;
or an officer of general or flag rank in command
arrest in quarters for not more than 30 consecutive days;
forfeiture of not more than one-half of one month's pay per month
for two months;
from duty, for not more than 60 consecutive days;
for three months;
on bread and water or diminished rations for not more than three consecutive
days;
correctional custody for not more than seven consecutive days;
forfeiture of not more than seven days' pay;
reduction to the next inferior pay grade, if the grade from which
demoted is within the promotion authority of the officer imposing the reduction
or any officer subordinate to the one who imposes the reduction;
14 consecutive days;
from duty, for not more than 14 consecutive days;
detention of not more than 14 days' pay;
if imposed by an officer of the grade of major or lieutenant commander,
or above
the punishment authorized under clause (A);
correctional custody for not more than 30 consecutive days;
forfeiture of not more than one-half of one month's pay per month
for two months;
from which demoted is within the promotion authority of the officer imposing
the reduction or any officer subordinate to the one who imposes the reduction,
but an enlisted member in a pay grade above E4 may not be reduced more than
two pay grades;
45 consecutive days;
from duty, for not more than 60 consecutive days;
for three months.
Detention of pay shall be for a stated period of
not more than one year but if the offender's term of service expires earlier,
the detention shall terminate upon that expiration. No two or more of the
punishments of arrest in quarters, confinement on bread and water or diminished
rations, correctional custody, extra duties, and restriction may be combined
to run consecutively in the maximum amount imposable for each. Whenever
any of those punishments are combined to run consecutively, there must be
an apportionment. In addition, forfeiture of pay may not be combined with
detention of pay without an apportionment. For the purpose of this subsection,
"correctional custody" is the physical restraint of a person
during duty or nonduty hours and may include extra duties, fatigue duties,
or hard labor. If practicable, correctional custody will not be served in
immediate association with persons awaiting trial or held in confinement
pursuant to trial by court-martial.
to the unit of which he is in charge such of the punishments authorized under
subsection (b)(2)(A)-(G) as the Secretary concerned may specifically prescribe
by regulation.
(b), or his successor in command, may, at any time, suspend probationally
any part or amount of the unexecuted punishment imposed and may suspend
probationally a reduction in grade or a forfeiture imposed under subsection
(b), whether or not executed. In addition, he may, at any time, remit or
mitigate any part or amount of the unexecuted punishment imposed and may
set aside in whole or in part the punishment, whether executed or unexecuted,
and restore all rights, privileges and property affected. He may also mitigate
reduction in grade to forfeiture or detention of pay. When mitigating-
arrest in quarters to restriction;
confinement on bread and water or diminished rations to correctional
custody;
rations to extra duties or restriction, or both; or
be for a greater period than the punishment mitigated.When mitigating forfeiture
of pay to detention of pay, the amount of the detention shall not be greater
than the amount of the forfeiture. When mitigating reduction in grade to
forfeiture or detention of pay, the amount of the forfeiture or detention
shall not be greater than the amount that could have been imposed initially
under this article by the officer who imposed the punishment mitigated.
unjust or disproportionate to the offense may, through the proper channel,
appeal to the next superior authority. The appeal shall be promptly forwarded
and decided, but the person punished may in the meantime be required to
undergo the punishment adjudged. The superior authority may exercise the
same powers with respect to the punishment imposed as may be exercised under
subsection (d) by the officer who imposed the punishment.Before acting on
an appeal from a punishment of -
arrest in quarters for more than seven days;
correctional custody for more than seven days;
forfeiture of more than seven days' pay;
reduction of one or more pay grades from the fourth or a higher
pay grade;
extra duties for more than 14 days;
restriction for more than 14 days; or
detention of more than 14 days' pay;
the authority who is
to act on the appeal shall refer the case to a judge advocate or a lawyer
of the Department of Homeland Security for consideration and advice, and may
so refer the case upon appeal from any punishment imposed under subsection
(b).
this article for any act or omission is not a bar to trial by court-martial
for a serious crime or offense growing out of the same act or omission,
and not properly punishable under this article; but the fact that a disciplinary
punishment has been enforced may be shown by the accused upon trial, and
when so shown shall be considered in determining the measure of punishment
to be adjudged in the event of a finding of guilty.
of records to be kept of proceedings under this article and may also prescribe
that certain categories of those proceedings shall be in writing.
Sec.
Art.
Courts-martial classified.
Jurisdiction of courts-martial in general.
Jurisdiction of general courts-martial.
Jurisdiction of special courts-martial.
Jurisdiction of summary courts-martial.
Jurisdiction of courts-martial not exclusive.
The three kinds of courts-martial in each of the armed forces are-
a military judge and not less than five members or, in a case in which the accused may be sentenced to a penalty of death, the number of members determined under section 825a of this title (article 25a); or
only a military judge, if before the court is assembled the accused,
knowing the identity of the military judge and after consultation with defense
counsel, requests orally on the record or in writing a court composed only
of a military judge and the military judge approves;
not less than three members; or
a military judge and not less than three members; or
only a military judge, if one has been detailed to the court, and
the accused under the same conditions as those prescribed in clause (1)(B)
so requests; and
subject to this chapter. The exercise of jurisdiction by one armed force
over personnel of another armed force shall be in accordance with regulations
prescribed by the President.
authority to convene a general court-martial for the command which held the
trial, where that review is required under this chapter, shall be carried
out by the department that includes the armed force of which the accused
is a member.
Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.
A general court-martial of the kind specified in section 816(1)(B) of this title (article 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.
Consistent with sections 819, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts-martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2)).
Subject to section 817 of this title (article 17), special courts-martial
have jurisdiction to try persons subject to this chapter for any noncapital
offense made punishable by this chapter and, under such regulations as the
President may prescribe, for capital offenses. Special courts-martial may,
under such limitations as the President may prescribe, adjudge any punishment
not forbidden by this chapter except death, dishonorable discharge, dismissal,
confinement for more than one year, hard labor without confinement for more
than three months, forfeiture of pay exceeding two-thirds pay per month,
or forfeiture of pay for more than one year. A bad-conduct discharge, confinement
for more than six months, or forfeiture of pay for more than six months may
not be adjudged unless a complete record of the proceedings and testimony
has been made, counsel having the qualifications prescribed under section
827(b) of this title (article 27(b)) was detailed to represent the accused,
and a military judge was detailed to the trial, except in any case in which
a military judge could not be detailed to the trial because of physical
conditions or military exigencies. In any such case in which a military judge
was not detailed to the trial, the convening authority shall make a detailed
written statement, to be appended to the record, stating the reason or reasons
a military judge could not be detailed.
Subject to section 817 of this title (article 17), summary courts-martial
have jurisdiction to try persons subject to this chapter, except officers,
cadets, aviation cadets, and midshipmen, for any noncapital offense made
punishable by this chapter. No person with respect to whom summary courts-martial
have jurisdiction may be brought to trial before a summary court-martial
if he objects thereto. If objection to trial by summary court-martial is
made by an accused, trial may be ordered by special or general court-martial
as may be appropriate. Summary courts-martial may, under such limitations
as the President may prescribe, adjudge any punishment not forbidden by
this chapter except death, dismissal, dishonorable or bad-conduct discharge,
confinement for more than one month, hard labor without confinement for
more than 45 days, restriction to specified limits for more than two months,
or forfeiture of more than two-thirds of one month's pay.
The provisions of this chapter conferring jurisdiction upon courts-martial
do not deprive military commissions, provost courts, or other military tribunals
of concurrent jurisdiction with respect to offenders or offenses that by
statute or by the law of war may be tried by military commissions, provost
courts, or other military tribunals.
Sec.
Art.
Who may convene general courts-martial.
Who may convene special courts-martial.
Who may convene summary courts-martial.
Who may serve on courts-martial.
Military judge of a general or special courts-martial.
Detail of trial counsel and defense counsel.
Detail or employment of reporters and interpreters.
Absent and additional members.
the President of the United States;
the Secretary of Defense;
the commanding officer of a unified or specified combatant command;
the Secretary concerned;
the commanding officer of an Army Group,
an Army, an Army Corps, a division, a separate brigade, or a corresponding
unit of the Army or Marine Corps;
naval station or larger shore activity of the Navy beyond the United States;
division, or a separate wing of the Air Force or Marine Corps;
or
by the President.
convened by superior competent authority, and may in any case be convened
by such authority if considered desirable by him.
any person who may convene a general court-martial;
the commanding officer of a district, garrison, fort, camp, station,
Air Force base, auxiliary air field, or other place where members of the
Army or the Air Force are on duty;
or corresponding unit of the Army;
the Air Force;
base, or station; the commanding officer of any Marine brigade, regiment,
detached battalion, or corresponding unit; the commanding officer of any
Marine barracks, wing, group, separate squadron, station, base, auxiliary
air field, or other place where members of the Marine Corps are on duty;
of detached units of any of the armed forces placed under a single commander
for this purpose; or
when empowered by the Secretary concerned.
by superior competent authority, and may in any case be convened by such
authority if considered advisable by him.
any person who may convene a general or special court-martial;
the commanding officer of a detached company or other detachment
of the Army;
of the Air Force; or
when empowered by the Secretary concerned.
detachment he shall be the summary court-martial of that command or detachment
and shall hear and determine all summary court-martial cases brought before
him. Summary courts-martial may, however, be convened in any case by superior
competent authority when considered desirable by him.
all courts-martial for the trial of any person who may lawfully be brought
before such courts for trial.
and special courts-martial for the trial of any person, other than a commissioned
officer, who may lawfully be brought before such courts for trial.
(c)(1) Any enlisted member of an armed force on active duty who is not
a member of the same unit as the accused is eligible to serve on general
and special courts-martial for the trial of any enlisted member of an armed
force who may lawfully be brought before such courts for trial, but he shall
serve as a member of a court only if, before the conclusion of a session
called by the military judge under section 839(a) of this title (article
39(a)) prior to trial or, in the absence of such a session, before the court
is assembled for the trial of the accused, the accused personally has requested
orally on the record or in writing that enlisted members serve on it. After
such a request, the accused may not be tried by a general or special court-martial
the membership of which does not include enlisted members in a number comprising
at least one-third of the total membership of the court, unless eligible
enlisted members cannot be obtained on account of physical conditions or
military exigencies. If such members cannot be obtained, the court may be
assembled and the trial held without them, but the convening authority shall
make a detailed written statement, to be appended to the record, stating
why they could not be obtained.
body as defined by the Secretary concerned, but in no case may it be a body
larger than a company, squadron, ship's crew, or body corresponding to one
of them.
(d)(1) When it can be avoided, no member of an armed force may be tried
by a court-martial any member of which is junior to him in rank or grade.
as members thereof such members of the armed forces as, in his opinion, are
best qualified for the duty by reason of age, education, training, experience,
length of service, and judicial temperament. No member of an armed force
is eligible to serve as a member of a general or special court-martial when
he is the accuser or a witness for the prosecution or has acted as investigating
officer or as counsel in the same case.
convening authority may excuse a member of the court from participating in
the case. Under such regulations as the Secretary concerned may prescribe,
the convening authority may delegate his authority under this subsection
to his staff judge advocate or legal officer or to any other principal assistant.
In a case in which the accused may be sentenced to a penalty of death, the number of members shall be not less than 12, unless 12 members are not reasonably available because of physical conditions or military exigencies, in which case the convening authority shall specify a lesser number of members not less than five, and the court may be assembled and the trial held with not less than the number of members so specified. In such a case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available.
Subject to regulations of the Secretary concerned, a military judge may be
detailed to any special court-martial. The Secretary concerned shall prescribe
regulations providing for the manner in which military judges are detailed
for such courts-martial and for the persons who are authorized to detail
military judges for such courts-martial. The military judge shall preside
over each open session of the court-martial to which he has been detailed.
who is a member of the bar of a Federal court or a member of the bar of the
highest court of a State and who is certified to be qualified for duty as
a military judge by the Judge Advocate General of the armed force of which
such military judge is a member.
by the Judge Advocate General, or his designee, of the armed force of which
the military judge is a member for detail in accordance with regulations
prescribed under subsection (a). Unless the court-martial was convened by
the President or the Secretary concerned, neither the convening authority
nor any member of his staff shall prepare or review any report concerning
the effectiveness, fitness, or efficiency of the military judge so detailed,
which relates to his performance of duty as a military judge. A commissioned
officer who is certified to be qualified for duty as a military judge of
a general court-martial may perform such duties only when he is assigned
and directly responsible to the Judge Advocate General, or his designee,
of the armed force of which the military judge is a member and may perform
duties of a judicial or nonjudicial nature other than those relating to his
primary duty as a military judge of a general court-martial when such duties
are assigned to him by or with the approval of that Judge Advocate General
or his designee.
is the accuser or a witness for the prosecution or has acted as investigating
officer or a counsel in the same case.
members of the court except in the presence of the accused, trial counsel,
and defense counsel, nor may he vote with the members of the court.
and special court-martial. Assistant trial counsel and assistant and associate
defense counsel may be detailed for each general and special court-martial.
The Secretary concerned shall prescribe regulations providing for the manner
in which counsel are detailed for such courts-martial and for the persons
who are authorized to detail counsel for such courts-martial.
or court member in any case may act later as trial counsel, assistant trial
counsel, or, unless expressly requested by the accused, as defense counsel
or assistant or associate defense counsel in the same case. No person who
has acted for the prosecution may act later in the same case for the defense,
nor may any person who has acted for the defense act later in the same case
for the prosecution.
school or is a member of the bar of a Federal court or of the highest court
of a State; or must be a member of the bar of a Federal court or of the
highest court of a State; and
Advocate General of the armed force of which he is a member.
at the trial by counsel having the qualifications prescribed under section
827(b) of this title (article 27(b)) unless counsel having such qualifications
cannot be obtained on account of physical conditions or military exigencies.
If counsel having such qualifications cannot be obtained, the court may be
convened and the trial held but the convening authority shall make a detailed
written statement, to be appended to the record, stating why counsel with
such qualifications could not be obtained;
court-martial, the defense counsel detailed by the convening authority must
be a person similarly qualified; and
of a Federal court or the highest court of a State, the defense counsel detailed
by the convening authority must be one of the foregoing.
Under such regulations as the Secretary concerned may prescribe,
the convening authority of a court-martial, military commission, or court
of inquiry shall detail or employ qualified court reporters, who shall record
the proceedings of and testimony taken before that court or commission.
Under like regulations the convening authority of a court-martial, military
commission, or court of inquiry may detail or employ interpreters who shall
interpret for the court or commission.
excused after the court has been assembled for the trial of the accused unless
excused as a result of a challenge, excused by the military judge for physical
disability or other good cause, or excused by order of the convening authority
for good cause.
composed of a military judge only, is reduced below five members, the trial
may not proceed unless the convening authority details new members sufficient
in number to provide not less than five members. The trial may proceed with
the new members present after the recorded evidence previously introduced
before the members of the court has been read to the court in the presence
of the military judge, the accused, and counsel for both sides.
composed of a military judge only, is reduced below three members, the trial
may not proceed unless the convening authority details new members sufficient
in number to provide not less than three members. The trial shall proceed
with the new members present as if no evidence had previously been introduced
at the trial, unless a verbatim record of the evidence previously introduced
before the members of the court or a stipulation thereof is read to the
court in the presence of the military judge, if any, the accused and counsel
for both sides.
judge only is unable to proceed with the trial because of physical disability,
as a result of a challenge, or for other good cause, the trial shall proceed,
subject to any applicable conditions of section 8 16(l)(B) or (2)(C) of this
title (article 16(1)(B) or (2)(C)), after the detail of a new military judge
as if no evidence had previously been introduced, unless a verbatim record
of the evidence previously introduced or a stipulation thereof is read in
court in the presence of the new military judge, the accused, and counsel
for both sides.
Sec.
Art.
Charges and specifications.
Compulsory self-incrimination prohibited.
Preliminary hearing.
Forwarding of charges.
Advice of staff judge advocate and reference for trial.
Service of charges.
to this chapter under oath before a commissioned officer of the armed forces
authorized to administer oaths and shall state-
the matters set forth therein; and
immediate steps to determine what disposition should be made thereof in the
interest of justice and discipline, and the person accused shall be informed
of the charges against him as soon as practicable.
himself or to answer any question the answer to which may tend to incriminate
him.
statement from an accused or a person suspected of an offense without first
informing him of the nature of the accusation and advising him that he does
not have to make any statement regarding the offense of which he is accused
or suspected and that any statement made by him may be used as evidence against
him in a trial by court-martial.
a statement or produce evidence before any military tribunal if the statement
or evidence is not material to the issue and may tend to degrade him.
or through the use of coercion, unlawful influence, or unlawful inducement
may be received in evidence against him in a trial by court-martial.
No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing unless such hearing is waived by the accused.
The purpose of the preliminary hearing shall be limited to the following:
committed and the accused committed the offense.
Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.
Considering the form of charges.
Recommending the disposition that should be made of the case.
judge advocate certified under section 827(b) of this title (article 27(b)) whenever
practicable or, in exceptional circumstances in which the interests of justice warrant, by
an impartial hearing officer who is not a judge advocate. If the hearing officer is not a
judge advocate, a judge advocate certified under section 827(b) of this title (article
27(b)) shall be available to provide legal advice to the hearing officer.
detailed to conduct the preliminary hearing, the officer shall be equal to or senior in
grade to military counsel detailed to represent the accused or the Government at the
preliminary hearing.
the judge advocate or other officer conducting the preliminary hearing shall prepare a
report that addresses the matters specified in subsections (a)(2) and (f).
The accused shall be advised of the charges against the accused and of the accused's right to be represented by counsel at the preliminary hearing under subsection (a). The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section.
The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as
provided for in paragraph (4) and subsection (a)(2).
A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.
The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purposes of the hearing, as provided in subsection (a)(2).
Recording of Preliminary Hearing.- A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial.
Effect of Evidence of Uncharged Offense. If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused-
is present at the preliminary hearing;
is informed of the nature of each uncharged offense considered; and
is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).
Effect of Violation.- The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error.
Victim Defined. In this section, the term "victim" means a person who-
is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and
is named in one of the specifications.
When a person is held for trial by general court-martial the commanding
officer shall, within eight days after the accused is ordered into arrest
or confinement, if practicable, forward the charges, together with the Investigation
and allied papers, to the officer exercising general court-martial jurisdiction.
If that is not practicable, he shall report in writing to that officer the
reasons for delay.
the convening authority shall refer it to his staff judge advocate for consideration
and advice. The convening authority may not refer a specification under
a charge to a general court-martial for trial unless he has been advised
in writing by the staff judge advocate that-
the specification alleges an offense under this chapter;
the specification is warranted by the evidence indicated in the report of a preliminary hearing under section 832 of this title (article 32)(if there is such a report); and
a court-martial would have jurisdiction over the accused and the
offense.
respect to a specification under a charge shall include a written and signed
statement by the staff judge advocate
in subsection (a); and
the specification.
If the specification is referred for trial, the
recommendation of the staff judge advocate shall accompany the specification.
not conform to the substance of the evidence contained in the report of the
investigating officer, formal corrections, and such changes in the charges
and specifications as are needed to make them conform to the evidence, may
be made.
The trial counsel to whom court-martial charges are referred for
trial shall cause to be served upon the accused a copy of the charges upon
which trial is to be had. In time of peace no person may, against his objection,
be brought to trial or be required to participate by himself or counsel in
a session called by the military judge under section 839(a) of this title
(article 39(a)), in a general court-martial case within a period of five
days after the service of charges upon him or in a special court-martial
within a period of three days after the service of the charges upon him.
Sec.
Art.
President may prescribe rules.
Unlawfully influencing action of court.
Duties of trial counsel and defense counsel.
Sessions.
Continuances.
Challenges.
Oaths.
Statute of limitations.
Former jeopardy.
Pleas of the accused.
Opportunity to obtain witnesses and other evidence.
Refusal to appear or testify.
Contempts.
Depositions.
Admissibility of records of courts of inquiry.
850a.
50a.
Defense of lack of mental responsibility.
Voting and rulings.
Number of votes required.
Court to announce action.
Record of trial.
proof, for cases arising under this chapter triable in courts-martial, military
commissions and other military tribunals, and procedures for courts of inquiry,
may be prescribed by the President by regulations which shall, so far as
he considers practicable, apply the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United States
district courts, but which may not be contrary to or inconsistent with this
chapter.
insofar as practicable.
nor any other commanding officer, may censure, reprimand, or admonish the
court or any member, military judge, or counsel thereof, with respect to
the findings or sentence adjudged by the court, or with respect to any other
exercises of its or his functions in the conduct of the proceedings. No
person subject to this chapter may attempt to coerce or, by any unauthorized
means, influence the action of a court-martial or any other military tribunal
or any member thereof, in reaching the findings or sentence in any case,
or the action of any convening, approving, or reviewing authority with respect
to his judicial acts. The foregoing provisions of the subsection shall not
apply with respect to (1) general instructional or informational courses
in military justice if such courses are designed solely for the purpose of
instructing members of a command in the substantive and procedural aspects
of courts-martial, or (2) to statements and instructions given in open court
by the military judge, president of a special court-martial, or counsel.
report or any other report or document used in whole or in part for the purpose
of determining whether a member of the armed forces is qualified to be advanced,
in grade, or in determining the assignment or transfer of a member of the
armed forces or in determining whether a member of the armed forces should
be retained on active duty, no person subject to this chapter may, in preparing
any such report (1) consider or evaluate the performance of duty of any such
member of a court-martial, or (2) give a less favorable rating or evaluation
of any member of the armed forces because of the zeal with which such member,
as counsel, represented any accused before a court-martial.
in the name of the United States, and shall, under the direction of the court,
prepare the record of the proceedings.
(b)(1) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection.
by him.
27); or
available (as determined under regulations prescribed under paragraph (7)).
detailed or selected under paragraph (3) shall act as associate counsel unless
excused at the request of the accused.
by military counsel of his own selection under paragraph (3)(B), any military
counsel detailed under paragraph (3)(A) shall be excused.
military counsel. However, the person authorized under regulations prescribed
under section 827 of this title (article 27) to detail counsel in his sole
discretion-
and
under paragraph (3)(B), may approve a request from the accused that military
counsel detailed under paragraph (3)(A) act as associate defense counsel.
available" for the purpose of paragraph (3)(B) and establish procedures
for determining whether the military counsel selected by an accused under
that paragraph is reasonably available. Such regulations may not prescribe
any limitation based on the reasonable availability of counsel solely on
the grounds that the counsel selected by the accused is from an armed force
other than the armed force of which the accused is a member. To the maximum
extent practicable, such regulations shall establish uniform policies among
the armed forces while recognizing the differences in the circumstances and
needs of the various armed forces. The Secretary concerned shall submit
copies of regulations prescribed under this paragraph to the Committees on
Armed Services of the Senate and House of Representatives.
defense counsel-
of such matters as he determines should be considered in behalf of the accused
on review (including any objection to the contents of the record which he
considers appropriate);
860 of this title (article 60); and
the direction of the trial counsel or when he is qualified to be a trial
counsel as required by section 827 of this title (article 27), perform any
duty imposed by law, regulation, or the custom of the service upon the trial
counsel of the court. An assistant trial counsel of a special court-martial
may perform any duty of the trial counsel.
may, under the direction of the defense counsel or when he is qualified to
be the defense counsel as required by section 827 of this title (article
27), perform any duty imposed by law, regulation, or the custom of the service
upon counsel for the accused.
for trial to a court-martial composed of a military judge and members, the
military judge may, subject to section 835 of this title (article 35), call
the court into session without the presence of the members for the purpose
of-
which are capable of determination without trial of the issues raised by
a plea of not guilty;
military judge under this chapter, whether or not the matter is appropriate
for later consideration or decision by the members of the court;
the arraignment and receiving the pleas of the accused; and
by the military judge under this chapter or under rules prescribed pursuant
to section 836 of this title (article 36) and which does not require the
presence of the members of the court.
in the presence of the accused, the defense counsel, and the trial counsel
and shall be made a part of the record. These proceedings may be conducted
notwithstanding the number of members of the court and without regard to
section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).
members may be present. All other proceedings, including any other consultation
of the members of the court with counsel or the military judge, shall be
made a part of the record and shall be in the presence of the accused, the
defense counsel, the trial counsel, and in cases in which a military judge
has been detailed to the court, the military judge.
may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and
may not form the basis of any holding, decision, or other determination of a court-martial.
The military judge or a court-martial without a military judge
may, for reasonable cause, grant a continuance to any party for such time,
and as often, as may appear to be just.
(a)(1) The military judge and members of a general or special court-martial
may be challenged by the accused or the trial counsel for cause stated to
the court. The military judge, or, if none, the court, shall determine the
relevance and validity of challenges for cause, and may not receive a challenge
to more than one person at a time. Challenges by the trial counsel shall
ordinarily be presented and decided before those by the accused are offered.
minimum number of members required by section 816 of this title (article
16), all parties shall (notwithstanding section 829 of this title (article
29)) either exercise or waive any challenge for cause then apparent against
the remaining members of the court before additional members are detailed
to the court. However, peremptory challenges shall not be exercised at that
time.
(b)(1) Each accused and the trial counsel are entitled initially to one
peremptory challenge of the members of the court. The military judge may
not be challenged except for cause.
minimum number of members required by section 816 of this title (article
16), the parties shall (notwithstanding section 829 of this title (article
29)) either exercise or waive any remaining peremptory challenge (not previously
waived) against the remaining members of the court before additional members
are detailed to the court.
any challenges for cause against such additional members are presented and
decided, each accused and the trial counsel are entitled to one peremptory
challenge against members not previously subject to peremptory challenge.
(As
amended Nov. 5, 1990, Pub. L. 101-510, Div. A, Title V, § 541(b)-(d),
104 Stat. 1565.)
of general and special courts-martial, trial counsel, assistant trial counsel,
defense counsel, assistant or associate defense counsel, reporters, and
interpreters shall take an oath to perform their duties faithfully. The form
of the oath, the time and place of the taking thereof, the manner of recording
the same, and whether the oath shall be taken for all cases in which these
duties are to be performed or for a particular case, shall be as prescribed
in regulations of the Secretary concerned. These regulations may provide
that an oath to perform faithfully duties as a military judge, trial counsel,
assistant trial counsel, defense counsel, or assistant or associate defense
counsel may be taken at any time by any judge advocate or other person certified
to be qualified or competent for the duty, and if such an oath is taken it
need not again be taken at the time the judge advocate, or other person
is detailed to that duty.
(b)(1) Except as otherwise provided in this section (article), a person
charged with an offense is not liable to be tried by court-martial if the
offense was committed more than five years before the receipt of sworn charges
and specifications by an officer exercising summary court-martial jurisdiction
over the command.
(2)(A) A person charged with having committed a child abuse offense against
a child is liable to be tried by court-martial if the sworn charges and specifications
are received during the life of the child or within five years after the date on which the offense was committed, whichever provides a longer period, by an officer exercising
summary court-martial jurisdiction with respect to that person.
that involves abuse of a person who has not attained the
age of 16 years and constitutes any of the following offenses:
Any offense in violation of section 920, 920a, 920b, or 920c of this title (article 120, 120a, 120b, or 120c), unless the offense is covered by subsection (a).
Maiming in violation of section 924 of this title (article 124).
Forcible sodomy in violation of section 925 of this title (article 125).
Aggravated assault or assault consummated by a battery in violation
of section 928 of this title (article 128).
section 815 of this title (article 15) if the offense was committed more
than two years before the imposition of punishment.
from justice shall be excluded in computing the period of limitation prescribed
in this section (article).
the United States has the authority to apprehend him, or in the custody of
civil authorities, or in the hands of the enemy, shall be excluded in computing
the period of limitation prescribed in this article.
the President by the Secretary concerned to be detrimental to the prosecution
of the war or inimical to the national security, the period of limitation
prescribed in this article is extended to six months after the termination
of hostilities as proclaimed by the President or by a joint resolution of
Congress.
limitations applicable to any offense under this chapter-
any agency thereof in any manner, whether by conspiracy or not;
control, or disposition of any real or personal property of the United States;
or
performance, payment, interim financing, cancellation, or other termination
or settlement, of any contract, subcontract, or purchase order which is
connected with or related to the prosecution of the war, or with any disposition
of termination inventory by any war contractor or Government agency;
is
suspended until three years after the termination of hostilities as proclaimed
by the President or by a joint resolution of Congress.
(g)(1) If charges or specifications are dismissed as defective or insufficient
for any cause and the period prescribed by the applicable statute of limitations-
has expired; or
will expire within 180 days after the date of dismissal of the
charges and specifications, trial and punishment under new charges and specifications
are not barred by the statute of limitations if the conditions specified
in paragraph (2) are met.
and specifications must-
over the command within 180 days after the dismissal of the charges or specifications;
and
charges or specifications (or allege acts or omissions that were included
in the dismissed charges or specifications).
the same offense.
upon any charge or specification is a trial in the sense of this article
until the finding of guilty has become final after review of the case has
been fully completed.
a finding, is dismissed or terminated by the convening authority or on motion
of the prosecution for failure of available evidence or witnesses without
any fault of the accused is a trial in the sense of this article.
after a plea of guilty sets up matter inconsistent with the plea, or if it
appears that he has entered the plea of guilty improvidently or through
lack of understanding of its meaning and effect, or if he fails or refuses
to plead, a plea of not guilty shall be entered in the record, and the court
shall proceed as though he had pleaded not guilty.
or specification alleging an offense for which the death penalty may be adjudged.
With respect to any other charge or specification to which a plea of guilty
has been made by the accused and accepted by the military judge or by a court-martial
without a military judge, a finding of guilty of the charge or specification
may, if permitted by regulations of the Secretary concerned, be entered immediately
without vote. This finding shall constitute the finding of the court unless
the plea of guilty is withdrawn prior to announcement of the sentence, in
which event the proceedings shall continue as though the accused had pleaded
not guilty.
Opportunity To Obtain Witnesses and Other Evidence. The counsel for the Government, the counsel for the accused, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.
Counsel for Accused Interview of Victim of Alleged Sex-Related Offense.-
Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an alleged sex-related offense who counsel for the Government intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter, counsel for the accused shall make any request to interview the victim through the Special Victims' Counsel or other counsel for the victim, if applicable.
If requested by an alleged victim of an alleged sex-related offense who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of counsel for the Government, a counsel for the victim, or a Sexual Assault Victim Advocate.
In this subsection, the term "alleged sex-related offense" means any allegation of-
a violation of section 920, 920a, 920b, 920c, or 925 of this title (article 120, 120a, 120b, 120c, or 125); or
an attempt to commit an offense specified in a paragraph (1) as punishable under section 880 of this title (article 80).
has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for a preliminary hearing pursuant to section 832 of this title (article 32);
has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and
willfully neglects or refuses to appear, or refuses to qualify
as a witness or to testify or to produce any evidence which that person may
have been legally subpoenaed to produce;
is guilty of an offense against
the United States.
be tried on indictment or information in a United States district court or
in a court of original criminal jurisdiction in any of the
Commonwealths or possessions of the United States, and jurisdiction is conferred
upon those courts for that purpose. Upon conviction, such a person shall
be fined or imprisoned, or both, at the court's discretion.
States in any such court of original criminal jurisdiction shall, upon the
certification of the facts to him by the military court, commission, court
of inquiry, board, or convening authority file an information against and prosecute any person
violating this article.
of the appropriations for the compensation of witnesses.
uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial, court, or military commission;
disturbs the proceedings of the court-martial, court, or military commission by any riot or disorder; or
willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.
Punishment. The punishment for contempt under subsection (a) may not exceed confinement for 30 days, a fine of $1,000, or both.
Inapplicability to military commissions under Chapter 47a. This section does not apply to a military commission established under chapter 47A of this title.
(a)(1) At any time after charges have been signed as provided in section 830 of this title (article 30), oral or written depositions may be ordered as follows:
Before referral of such charges for trial, by the convening authority who has such charges for disposition.
After referral of such charges for trial, by the convening authority or the military judge hearing the case.
An authority authorized to order a deposition under paragraph (1) may order the deposition at the request of any party, but only if the party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved for use at a preliminary hearing under section 832 of this title (article 32) or a court-martial.
If a deposition is to be taken before charges are referred for trial, the authority under paragraph (1)(A) may designate commissioned officers as counsel for the Government and counsel for the accused, and may authorize those officers to take the deposition of any witness.
to every other party reasonable written notice of the time and place for
taking the deposition.
or civil officer authorized by the laws of the United States or by the laws
of the place where the deposition is taken to administer oaths.
the other parties, so far as otherwise admissible under the rules of evidence,
may be read in evidence or, in the case of audiotape, videotape, or similar
material, may be played in evidence before any military court or commission
in any case not capital, or in any proceeding before a court of inquiry or
military board, if it appears-
or District of Columbia in which the court, commission, or board is ordered
to sit, or beyond 100 miles from the place of trial or hearing;
imprisonment, military necessity, nonamenability to process, or other reasonable
cause, is unable or refuses to appear and testify in person at the place
of trial or hearing; or
by the defense in capital cases.
or, in the case of audiotape, videotape, or similar material, may be played
in evidence in any case in which the death penalty is authorized but is
not mandatory, whenever the convening authority directs that the case be
treated as not capital, and in such a case a sentence of death may not be
adjudged by the court-martial.
commissioned officer, the sworn testimony, contained in the duly authenticated
record of proceedings of a court of inquiry, of a person whose oral testimony
cannot be obtained, may, if otherwise admissible under the rules of evidence,
be read in evidence by any party before a court-martial or military commission
if the accused was a party before the court of inquiry and if the same issue
was involved or if the accused consents to the introduction of such evidence.
cases or cases extending to the dismissal of a commissioned officer.
or a military board.
at the time of the commission of the acts constituting the offense, the accused,
as a result of a severe mental disease or defect, was unable to appreciate
the nature and quality or the wrongfulness of the acts. Mental disease or
defect does not otherwise constitute a defense.
responsibility by clear and convincing evidence.
to an offense is properly at issue, the military judge, or the president
of a court-martial without a military judge, shall instruct the members
of the court as to the defense of lack of mental responsibility under this
section and shall charge them to find the accused-
guilty;
not guilty; or
not guilty only by reason of lack of mental responsibility.
military judge only. In the case of a court-martial composed of a military
judge only, whenever lack of mental responsibility of the accused with respect
to an offense is properly at issue, the military judge shall find the accused-
guilty;
not guilty; or
not guilty only by reason of lack of mental responsibility.
52), the accused shall be found not guilty only by reason of lack of mental
responsibility if-
the vote is taken determines that the defense of lack of mental responsibility
has been established; or
the military judge determines that the defense of lack of mental responsibility
has been established.
findings and on the sentence, and by members of a court-martial without a
military judge upon questions of challenge, shall be by secret written ballot.
The junior member of the court shall count the votes. The count shall be
checked by the president, who shall forthwith announce the result of the
ballot to the members of the court.
president of a court-martial without a military judge shall rule upon all
questions of law and all interlocutory questions arising during the proceedings.
Any such ruling made by the military judge upon any question of law or any
interlocutory question other than the factual issue of mental responsibility
of the accused, or by the president of a court-martial without a military
Judge upon any question of law other than a motion for a finding of not guilty,
is final and constitutes the ruling of the court. However, the military
judge or the president of a court-martial without a military judge may change
his ruling at any time during the trial. Unless the ruling is final, if
any member objects thereto, the court shall be cleared and closed and the
question decided by a voice vote as provided in section 852 of this title
(article 52), beginning with the junior in rank.
president of a court-martial without a military judge shall, in the presence
of the accused and counsel, instruct the members of the court as to the
elements of the offense and charge them-
is established by legal and competent evidence beyond reasonable doubt;
as to the guilt of the accused, the doubt must be resolved in favor of the
accused and he must be acquitted;
finding must be in a lower degree as to which there is no reasonable doubt;
and
beyond reasonable doubt is upon the United States.
of a military judge only. The military judge of such a court-martial shall
determine all questions of law and fact arising during the proceedings and,
if the accused is convicted, adjudge an appropriate sentence. The military
judge of such a court-martial shall make a general finding and shall in addition
on request find the facts specially. If an opinion or memorandum of decision
is filed, it will be sufficient if the findings of fact appear therein.
(a)(1) No person may be convicted of an offense for which the death penalty
is made mandatory by law, except by the concurrence of all the members of
the court-martial present at the time the vote is taken.
in section 845(b) of this title (article 45(b)) or by the concurrence of
two-thirds of the members present at the time the vote is taken.
(b)(1) No person may be sentenced to suffer death, except by the concurrence
of all the members of the court-martial present at the time the vote is taken
and for an offense in this chapter expressly made punishable by death.
for more than ten years, except by the concurrence of three-fourths of the
members present at the time the vote is taken.
of the members present at the time the vote is taken.
special court-martial shall be determined by a majority vote, but a determination
to reconsider a finding of guilty or to reconsider a sentence, with a view
toward decreasing it, may be made by any lesser vote which indicates that
the reconsideration is not opposed by the number of votes required for that
finding or sentence. A tie vote on a challenge disqualifies the member challenged.
A tie vote on a motion for a finding of not guilty or on a motion relating
to the question of the accused's sanity is a determination against the accused.
A tie vote on any other question is a determination in favor of the accused.
A court-martial shall announce its findings and sentence to the
parties as soon as determined.
proceedings in each case brought before it, and the record shall be authenticated
by the signature of the military judge. If the record cannot be authenticated
by the military judge by reason of his death, disability, or absence, it
shall be authenticated by the signature of the trial counsel or by that of
a member if the trial counsel is unable to authenticate it by reason of
his death, disability, or absence. In a court-martial consisting of only
a military judge the record shall be authenticated by the court reporter
under the same conditions which would impose such a duty on a member under
the subsection.
of the proceedings in each case, and the record shall be authenticated in
the manner required by such regulations as the President may prescribe.
(c)(1) A complete record of the proceedings and testimony shall be prepared-
includes death, a dismissal, a discharge, or (if the sentence adjudged does
not include a discharge) any other punishment which exceeds that which may
otherwise be adjudged by a special court-martial; and
includes a bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months.
matters as may be prescribed by regulations of the President.
court-martial shall be given to the accused as soon as it is authenticated.
Sec.
Art.
Cruel and unusual punishments prohibited.
Maximum and minimum limits.
856a.
56a.
Sentence of confinement for life without eligibility for parole.
Effective date of sentences.
857a.
57a.
Deferment of sentences.
Execution of confinement.
858a.
58a.
Sentences: reduction in enlisted grade upon approval.
858b.
58b.
Sentences: forfeiture of pay and allowances during confinement.
Punishment by flogging, or by branding, marking, or tattooing on
the body, or any other cruel or unusual punishment, may not be adjudged by
a court-martial or inflicted upon any person subject to this chapter. The
use of irons, single or double, except for the purpose of safe custody, is
prohibited.
(b)(1) While a person subject to this chapter who is found guilty of an offense specified in paragraph (2) shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge, except as provided for in section 860 of this title (article 60).
An offense in violation of subsection (a) or (b) of section 920 of this title (article 120(a) or (b)).
Rape and sexual assault of a child under subsection (a) or (b) of section 920b of this title (article 120b).
Forcible sodomy under section 925 of this title (article 125).
An attempt to commit an offense specified in subparagraph (A), (B), or (C) that is punishable under section 880 of this title (article 80).
be adjudged, a court-martial may adjudge a sentence of confinement for life
without eligibility for parole.
for parole shall be confined for the remainder of the accused's life unless-
or another person authorized to act under section 860 of this title (article
60); or
any other provision of subchapter IX;
action taken by a Court of Criminal Appeals, the Court of Appeals for the
Armed Forces, or the Supreme Court; or
is included in a sentence of a court-martial takes effect on the earlier
of-
adjudged; or
a forfeiture of pay or allowances or reduction in grade that would otherwise
become effective under paragraph (1)(A) until the date on which the sentence
is approved by the convening authority. Such a deferment may be rescinded
at any time by the convening authority.
allowances accruing on and after the date on which the sentence takes effect.
with respect to a sentence of a court-martial, means any person authorized
to act on the sentence under section 860 of this title (article 60).
begins to run from the date the sentence is adjudged by the court-martial,
but periods during which the sentence to confinement is suspended or deferred
shall be excluded in computing the service of the term of confinement.
ordered executed.
that has not been ordered executed, the convening authority or, if the accused
is no longer under his jurisdiction, the officer exercising general court-martial
jurisdiction over the command to which the accused is currently assigned,
may in his sole discretion defer service of the sentence to confinement.
The deferment shall terminate when the sentence is ordered executed. The
deferment may be rescinded at any time by the officer who granted it or,
if the accused is no longer under his jurisdiction, by the officer exercising
general court-martial jurisdiction over the command to which the accused
is currently assigned.
to in paragraph (2) to confinement, the convening authority may defer the
service of the sentence to confinement, without the consent of that person,
until after the person has been permanently released to the armed forces
by a state or foreign country referred to in that paragraph.
returned by that state or foreign country to the armed forces for trial by
court-martial; and
under the authority of a mutual agreement or treaty, as the case may be.
of the United States, the District of Columbia, a territory, or a possession
of the United States.
and the sentence to confinement has been ordered executed, but in which review
of the case under section 867(a)(2) of this title (article 67(a)(2)) is
pending, the Secretary concerned may defer further service of sentence to
confinement while that review is pending.
a sentence of confinement adjudged by a court-martial or other military tribunal,
whether or not the sentence includes discharge or dismissal, and whether
or not the discharge or dismissal has been executed, may be carried into
execution by confinement in any place of confinement under the control of
any of the armed forces or in any penal or correctional institution under
the control of the United States, or which the United States may be allowed
to use. Persons so confined in a penal or correctional institution not under
the control of one of the armed forces are subject to the same discipline
and treatment as persons confined or committed by the courts of the United
States or of the State, District of Columbia, or place in which
the institution is situated.
of a court-martial adjudging confinement does not deprive the authority executing
that sentence of the power to require hard labor as a part of the punishment.
Secretary concerned, a court-martial sentence of an enlisted member in a
pay grade above E-1, as approved by the convening authority, that
includes-
a dishonorable or bad-conduct discharge;
confinement; or
hard labor without confinement;
reduces that member to pay
grade E-1, effective on the date of that approval.
If the sentence of a member who is reduced in pay grade under subsection
is set aside or disapproved, or, as finally approved, does not include
any punishment named in subsection (a)(l), (2), or (3), the rights and privileges
of which he was deprived because of that reduction shall be restored to him
and he is entitled to the pay and allowances to which he would have been
entitled for the period the reduction was in effect, had he not been so
reduced.
in the forfeiture of pay, or of pay and allowances, due that member during
any period of confinement or parole. The forfeiture pursuant to this section
shall take effect on the date determined under section 857(a) of this title
(article 57(a)) and may be deferred as provided in that section. The pay
and allowances forfeited, in the case of a general court-martial, shall be
all pay and allowances due that member during such period and, in the case
of a special court-martial, shall be two-thirds of all pay due that member
during such period.
confinement for more than six months or death; or
confinement for six months or less and a dishonorable or bad-conduct
discharge or dismissal.
authority or other person acting under section 860 of this title (article
by subsection (a) for a period not to exceed six months. Any amount of
pay or allowances that, except for a waiver under this subsection, would
be forfeited shall be paid, as the convening authority or other person taking
action directs, to the dependents of the accused.
subsection (a) is set aside or disapproved or, as finally approved, does
not provide for a punishment referred to in subsection (a)(2), the member
shall be paid the pay and allowances which the member would have been paid,
except for the forfeiture, for the period which the forfeiture was in effect.
Sec.
Art.
Error of law; lesser included offense.
Action by the convening authority.
Waiver or withdrawal of appeal.
Appeal by the United States.
Rehearings.
Review by a judge advocate.
Disposition of records.
Review by Court of Criminal Appeals.
Review by the Court of Appeals for the Armed Forces.
867a.
67a.
Review by the Supreme Court.
Branch offices.
Review in the office of the Judge Advocate General.
Appellate counsel.
Execution of sentence; suspension of sentence.
Vacation of suspension.
Petition for a new trial.
Remission and suspension.
Restoration.
Finality of proceedings, findings, and sentences.
876a.
76a.
Leave required to be taken pending review of certain court-martial
convictions.
876b.
76b.
Lack of mental capacity or mental responsibility: commitment
of accused for examination and treatment.
on the ground of an error of law unless the error materially prejudices the
substantial rights of the accused.
of guilty may approve or affirm, instead, so much of the finding as includes
a lesser included offense.
of this title (article 66 or 69(a)), except a case in which the sentence
as approved under section 860(c) of this title (article 60(c)) includes
death, the accused may file with the convening authority a statement expressly
waiving the right of the accused to such review. Such a waiver shall be
signed by both the accused and by defense counsel and must be filed within
10 days after the action under section 860(c) of this title (article 60(c))
is served on the accused or on defense counsel. The convening authority
or other person taking such action, for good cause, may extend the period
for such filing by not more than 30 days.
860(c) of this title (article 60(c)) includes death, the accused may withdraw
an appeal at any time.
an appeal under this section bars review under section 866 or 869(a) of this
title (article 66 or 69(a)).
and in which a punitive discharge may be adjudged, the United States may
appeal the following (other than an order or ruling that is, or that amounts
to, a finding of not guilty with respect to the charge or specification):
with respect to a charge or specification.
proof of a fact material in the proceeding.
information.
classified information.
by the United States to prevent the disclosure of classified information.
subparagraph (E) that has previously been issued by appropriate authority.
counsel provides the military judge with written notice of appeal from the
order or ruling within 72 hours of the order or ruling. Such notice shall
include a certification by the trial counsel that the appeal is not taken
for the purpose of delay and (if the order or ruling appealed is one which
excludes evidence) that the evidence excluded is substantial proof of a
fact material in the proceeding.
appellate Government counsel.
under regulations of the President directly to the Court of Criminal Appeals
and shall, whenever practicable, have priority over all other proceedings
before that court. In ruling on an appeal under this section, the Court of
Criminal Appeals may act only with respect to matters of law, notwithstanding
section 866(c) of this title (article 66(c)).
shall be excluded in deciding any issue regarding denial of a speedy trial
unless an appropriate authority determines that the appeal was filed solely
for the purpose of delay with the knowledge that it was totally frivolous
and without merit.
Each rehearing under this chapter shall take place before a court-martial
composed of members not members of the court-martial which first heard the
case. Upon a rehearing the accused may not be tried for any offense of which
he was found not guilty by the first court-martial, and no sentence in excess
of or more severe than the original sentence may be approved, unless the
sentence is based upon a finding of guilty of an offense not considered upon
the merits in the original proceedings, or unless the sentence prescribed
for the offense is mandatory. If the sentence approved after the first court-martial
was in accordance with a pretrial agreement and the accused at the rehearing
changes his plea with respect to the charges or specifications upon which
the pretrial agreement was based, or otherwise does not comply with the pretrial
agreement, the approved sentence as to those charges or specifications may
include any punishment not in excess of that lawfully adjudged at the first
court-martial.
reviewed under section 866 or 869(a) of this title (article 66 or 69(a))
shall be reviewed by a judge advocate under regulations of the Secretary
concerned. A judge advocate may not review a case under this subsection if
he has acted in the same case as an accuser, investigating officer, member
of the court, military judge, or counsel or has otherwise acted on behalf
of the prosecution or defense. The judge advocate's review shall be in writing
and shall contain the following:
the court had jurisdiction over the accused and the offense;
the charge and specification stated an offense; and
the sentence was within the limits prescribed as a matter of law.
A response to each allegation of error made in writing by the accused.
If the case is sent for action under subsection (b), a recommendation
as to the appropriate action to be taken and an opinion as to whether corrective
action is required as a matter of law.
under subsection (a) shall be sent for action to the person exercising general
court-martial jurisdiction over the accused at the time the court was convened
(or to that person's successor in command) if-
action;
60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or
confinement for more than six months; or
concerned.
(c)(1) The person to whom the record of trial and related documents are
sent under subsection (b) may-
part;
remit, commute, or suspend the sentence in whole or in part;
except where the evidence was insufficient at the trial to support
the findings, order a rehearing on the findings, on the sentence, or on both;
or
impracticable, he shall dismiss the charges.
under subsection (a) is that corrective action is required as a matter of
law and if the person required to take action under subsection (b) does
not take action that is at least as favorable to the accused as that recommended
by the judge advocate, the record of trial and action thereon shall be sent
to Judge Advocate General for review under section 869(b) of this title
(article 69(b)).
of this title (article 66 or 69(a)) in which the right to such review is
not waived, or an appeal is not withdrawn, under section 861 of this title
(article 61), the record of trial and action thereon shall be transmitted
to the Judge Advocate General for appropriate action.
of trial and related documents shall be transmitted and disposed of as the
Secretary concerned may prescribe by regulation.
Appeals which shall be composed of one or more panels, and each such panel
shall be composed of not less than three appellate military judges. For
the purpose of reviewing court-martial cases, the court may sit in panels
or as a whole in accordance with rules prescribed under subsection (f).
Any decision of a panel may be reconsidered by the court sitting as a whole
in accordance with such rules. Appellate military judges who are assigned
to a Court of Criminal Appeals may be commissioned officers or civilians,
each of whom must be a member of a bar of a Federal court or the highest
court of a State. The Judge Advocate General shall designate as chief judge
one of the appellate military judges of the Court of Criminal Appeals established
by him.
The chief judge shall determine on which panels of the court the
appellate judges assigned to the court will serve and which military judge
assigned to the court will act as the senior judge on each panel.
the record in each case of trial by court-martial-
of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct
discharge, or confinement for one year or more; and
to appellate review has not been waived or an appeal has not been withdrawn
under section 861 of this title (article 61).
only with respect to the findings and sentence as approved by the convening
authority. It may affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as it finds correct in law and fact
and determines, on the basis of the entire record, should be approved. In
considering the record, it may weigh the evidence, judge the credibility
of witnesses, and determine controverted questions of fact, recognizing
that the trial court saw and heard the witnesses.
it may, except where the setting aside is based on lack of sufficient evidence
in the record to support the findings, order a rehearing. If it sets aside
the findings and sentence and does not order a rehearing, it shall order
that the charges be dismissed.
action by the President, the Secretary concerned, the Court of Appeals for
the Armed Forces, or the Supreme Court, instruct the convening authority
to take action in accordance with the decision of the Court of Criminal
Appeals. If the Court of Criminal Appeals has ordered a rehearing but the
convening authority finds a rehearing impracticable, he may dismiss the
charges.
for Courts of Criminal Appeals and shall meet periodically to formulate policies
and procedure in regard to review of court-martial cases in the office of
the Judge Advocates General and by Courts of Criminal Appeals.
on his own initiative be permitted, to prepare, approve, disapprove, review,
or submit, with respect to any other member of the same or another Court
of Criminal Appeals, an effectiveness, fitness, or efficiency report, or
any other report documents used in whole or in part for the purpose of determining
whether a member of the armed forces is qualified to be advanced in grade,
or in determining the assignment or transfer of a member of the armed forces,
or in determining whether a member of the armed forces shall be retained
on active duty.
the record of any trial if such member served as investigating officer in
the case or served as a member of the court-martial before which such trial
was conducted, or served as military judge, trial or defense counsel, or
reviewing officer of such trial.
in-
Appeals, extends to death;
Advocate General orders sent to the Court of Appeals for the Armed Forces
for review; and
petition of the accused and on good cause shown, the Court of Appeals for
the Armed Forces has granted a review.
for review of a decision of a Court of Criminal Appeals within 60 days from
the earlier of-
Court of Criminal Appeals; or
Appeals, after being served on appellate counsel of record for the accused
(if any), is deposited in the United States mails for delivery by first
class certified mail to the accused at an address provided by the accused
or, if no such address has been provided by the accused, at the latest address
listed for the accused in his official service record. The Court of Appeals
for the Armed Forces shall act upon such a petition promptly in accordance
with the rules of the court.
Forces may act only with respect to the findings and sentence as approved
by the convening authority and as affirmed or set aside as incorrect in
law by the Court of Criminal Appeals. In a case which the Judge Advocate
General orders sent to the Court of Appeals for the Armed Forces, that action
need be taken only with respect to the issues raised by him. In a case reviewed
upon petition of the accused, that action need be taken only with respect
to issues specified in the grant of review. The Court of Appeals for the
Armed Forces shall take action only with respect to matters of law.
and sentence, it may, except where the setting aside is based on lack of
sufficient evidence in the record to support the findings, order a rehearing.
If it sets aside the findings and sentence and does not order a rehearing,
it shall order that the charges be dismissed.
Forces may direct the Judge Advocate General to return the record to the
Court of Criminal Appeals for further review in accordance with the decision
of the court. Otherwise, unless there is to be further action by the President
or the Secretary concerned, the Judge Advocate General shall instruct the
convening authority to take action in accordance with that decision. If
the court has ordered a rehearing, but the convening authority finds a rehearing
impracticable, he may dismiss the charges.
are subject to review by the Supreme Court by writ of certiorari as provided
in section 1259 of title 28. The Supreme Court may not review by a writ
of certiorari under this section any action of the Court of Appeals for the
Armed Forces in refusing to grant a petition for review.
without prepayment of fees and costs or security therefor and without filing
the affidavit required by section 1915(a) of title 28.
The Secretary concerned may direct the Judge Advocate General to
establish a branch office with any command. The branch office shall be under
an Assistant Judge Advocate General who, with the consent of the Judge Advocate
General, may establish a Court of Criminal Appeals with one or more panels.
That Assistant Judge Advocate General and any Court of Criminal Appeals
established by him may perform for that command under the general supervision
of the Judge Advocate General, the respective duties which the Judge Advocate
General and a Court of Criminal Appeals established by the Judge Advocate
General would otherwise be required to perform as to all cases involving
sentences not requiring approval by the President.
reviewed under section 866 of this title (article 66) shall be examined in
the office of the Judge Advocate General if there is a finding of guilty
and the accused does not waive or withdraw his right to appellate review
under section 861 of this title (article 61). If any part of the findings
or sentence is found to be unsupported in law or if reassessment of the
sentence is appropriate, the Judge Advocate General may modify or set aside
the findings or sentence or both.
reviewed under subsection (a) or under section 866 of this title (article
General on the ground of newly discovered evidence, fraud on the court,
lack of jurisdiction over the accused or the offense, error prejudicial to
the substantial rights of the accused, or the appropriateness of the sentence.
If such a case is considered upon application of the accused, the application
must be filed in the office of the Judge Advocate General by the accused
on or before the last day of the two-year period beginning on the date the
sentence is approved under section 860(c) of this title (article 60(c)),
unless the accused establishes good cause for failure to file within that
time.
he may, except when the setting aside is based on lack of sufficient evidence
in the record to support the findings, order a rehearing. If he sets aside
the findings and sentence and does not order a rehearing, he shall order
that the charges be dismissed. If the Judge Advocate General orders a rehearing
but the convening authority finds a rehearing impractical, the convening
authority shall dismiss the charges.
title (article 66)-
Advocate General under this section, and (B) is sent to the Court of Criminal
Appeals by order of the Judge Advocate General; and,
in such case.
case reviewed by a Court of Criminal Appeals under this section, the Court
may take action only with respect to matters of law.
commissioned officers as appellate Government counsel, and one or more commissioned
officers as appellate defense counsel, who are qualified under section 827(b)(l)
of this title (article 27(b)(l)).
before the Court of Criminal Appeals or the Court of Appeals for the Armed
Forces when directed to do so by the Judge Advocate General. Appellate Government
counsel may represent the United States before the Supreme Court in cases
arising under this chapter when requested to do so by the Attorney General.
Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or
the Supreme Court-
when requested by the accused;
when the United States is represented by counsel; or
when the Judge Advocate General has sent the case to the Court
of Appeals for the Armed Forces.
Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme
Court by civilian counsel if provided by him.
in connection with the review of court-martial cases as the Judge Advocate
General directs.
of the sentence providing for death may not be executed until approved by
the President. In such a case, the President may commute, remit, or suspend
the sentence, or any part thereof, as he sees fit. That part of the sentence
providing for death may not be suspended.
the sentence of a court-martial extends to dismissal, that part of the sentence
providing for dismissal may not be executed until approved by the Secretary
concerned or such Under Secretary or Assistant Secretary as may be designated
by the Secretary concerned. In such a case, the Secretary, Under Secretary
or Assistant Secretary, as the case may be, may commute, remit, or suspend
the sentence, or any part of the sentence, as he sees fit. In time of war
or national emergency he may commute a sentence of dismissal to reduction
to any enlisted grade. A person so reduced may be required to serve for the
duration of the war or emergency and six months thereafter.
(c)(1) If a sentence extends to death, dismissal, or a dishonorable or
bad-conduct discharge and if the right of the accused to appellate review
is not waived, and an appeal is not withdrawn, under section 861 of this
title (article 61), that part of the sentence extending to death, dismissal,
or a dishonorable or bad-conduct discharge may not be executed until there
is a final judgment as to the legality of the proceedings (and with respect
to death or dismissal, approval under subsection (a) or (b), as appropriate).
A judgment as to legality of the proceedings is final in such cases when
review is completed by a Court of Criminal Appeals and-
of Appeals for the Armed Forces has expired and the accused has not filed
a timely petition for such review and the case is not otherwise under review
by that Court;
Forces; or
of Appeals for the Armed Forces and-
limits prescribed by the Supreme Court;
such a petition is rejected by the Supreme Court; or
review is otherwise completed in accordance with the judgment of
the Supreme Court.
discharge and if the right of the accused to appellate review is waived,
or an appeal is withdrawn, under section 861 of this title (article 61),
that part of the sentence extending to dismissal or a bad-conduct or dishonorable
discharge may not be executed until review of the case by a judge advocate
(and any action of that review) under section 864 of this title (article
executed by the convening authority or other person acting on the case under
section 860 of this title (article 60) when approved by him under that section.
sentence which as approved includes a bad-conduct discharge, or of any general
court-martial sentence, the officer having special court-martial jurisdiction
over the probationer shall hold a hearing on the alleged violation of probation.
The probationer shall be represented at the hearing by counsel if he so
desires.
having special court-martial jurisdiction shall be sent for action to the
officer exercising general court-martial jurisdiction over the probationer.
If he vacates the suspension, any unexecuted part of the sentence, except
a dismissal, shall be executed, subject to applicable restrictions in section
871(c) of this title (article 71(c)). The vacation of the suspension of
a dismissal is not effective until approved by the Secretary concerned.
competent to convene, for the command in which the accused is serving or
assigned, a court of the kind that imposed the sentence.
At any time within two years after approval by the convening authority
of a court-martial sentence, the accused may petition the Judge Advocate
General for a new trial on the grounds of newly discovered evidence or fraud
on the court. If the accused's case is pending before a Court of Criminal
Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate
General shall refer the petition to the appropriate court for action. Otherwise
the Judge Advocate General shall act upon the petition.
Secretary, Assistant Secretary, Judge Advocate General, or commanding officer
may remit or suspend any part or amount of the unexecuted part of any sentence,
including all uncollected forfeitures other than a sentence approved by the
President. However, in the case of a sentence of confinement for life without
eligibility for parole, after the sentence is ordered executed, the authority
of the Secretary concerned under the preceding sentence (1) may not be delegated,
and (2) may be exercised only after the service of a period of confinement
of not less than 20 years.
form of discharge for a discharge or dismissal executed in accordance with
the sentence of a court-martial.
privileges, and property affected by an executed part of a court-martial
sentence which has been set aside or disapproved, except an executed dismissal
or discharge, shall be restored unless a new trial or rehearing is ordered
and such executed part is included in a sentence imposed upon the new trial
or rehearing.
discharge is not imposed on a new trial, the Secretary concerned shall substitute
therefor a form of discharge authorized for administrative issuance unless
the accused is to serve out the remainder of this enlistment.
a new trial, the Secretary concerned shall substitute therefor a form of
discharge authorized for administrative issue, and the commissioned officer
dismissed by the sentence may be reappointed by the President alone to such
commissioned grade and with such rank as in the opinion of the President
that former officer would have attained had he not been dismissed. The reappointment
of such a former officer shall be without regard to the existence of a vacancy
and shall affect the promotion status of other officers only insofar as
the President may direct. All time between the dismissal and the reappointment
shall be considered as actual service for all purposes, including the right
to pay and allowances.
The appellate review of records of trial provided by this chapter,
the proceedings, findings, and sentences of courts-martial as approved, reviewed,
or affirmed as required by this chapter, and all dismissals and discharges
carried into execution under sentences by courts-martial following approval,
review, or affirmation as required by this chapter, are final and conclusive.
Orders publishing the proceedings of courts-martial and all action taken
pursuant to those proceedings are binding upon all departments, courts, agencies,
and officers of the United States, subject only to action upon a petition
for a new trial as provided in section 873 of this title (article 73) and
to action by the Secretary concerned as provided in section 874 of this
title (article 74), and the authority of the President.
convictions
Under regulations prescribed by the Secretary concerned, an accused
who has been sentenced by a court-martial may be required to take leave pending
completion of action under this subchapter if the sentence, as approved
under section 860 of this title (article 60), includes an unsuspended dismissal
or an unsuspended dishonorable or bad-conduct discharge. The accused may
be required to begin such leave on the date on which the sentence is approved
under section 860 of this title (article 60) or at any time after such date,
and such leave may be continued until the date which action under this subchapter
is completed or may be terminated at any earlier time.
for examination and treatment
suffering from a mental disease or defect rendering the person mentally incompetent
to the extent that the person is unable to understand the nature of the
proceedings against that person or to conduct or cooperate intelligently
in the defense of the case, the general court-martial convening authority
for that person shall commit the person to the custody of the Attorney General.
4241(d) of title 18.
section 4241(d) of title 18, it is determined that the committed person's
mental condition has not so improved as to permit the trial to proceed,
action shall be taken in accordance with section 4246 of such title.
pursuant to paragraph (2) determines that the person has recovered to such
an extent that the person is able to understand the nature of the proceedings
against the person and to conduct or cooperate intelligently in the defense
of the case, the director shall promptly transmit a notification of that
determination to the Attorney General and to the general court-martial convening
authority for the person. The director shall send a copy of the notification
to the person's counsel.
authority shall promptly take custody of the person unless the person covered
by the notification is no longer subject to this chapter. If the person
is no longer subject to this chapter, the Attorney General shall take any
action within the authority of the Attorney General that the Attorney General
considers appropriate regarding the person.
not more than 30 days after transmitting the notifications required by subparagraph
(A).
this subsection, references to the court that ordered the commitment of a
person, and to the clerk of such court, shall be deemed to refer to the
general court-martial convening authority for that person. However, if the
person is no longer subject to this chapter at a time relevant to the application
of such section to the person, the United States district court for the
district where the person is hospitalized or otherwise may be found shall
be considered as the court that ordered the commitment of the person.
of lack of mental responsibility, the person shall be committed to a suitable
facility until the person is eligible for release in accordance with this
section.
in accordance with subsection (c) of section 4243 of title 18. Subsections
court-martial convening authority for the person.
subsection (d) of section 4243 of title 18 that the person's release would
not create a substantial risk of bodily injury to another person or serious
damage of property of another due to a present mental disease or defect-
to the custody of the Attorney General; and
apply in the case of a person hospitalized pursuant to paragraph (4)(B),
except that the United States district court for the district where the person
is hospitalized shall be considered as the court that ordered the person's
commitment.
(d)(1), the provisions of section 4247 of title 18 apply in the administration
of this section.
by a court-martial under this section or by (or by order of) a general court-martial
convening authority under this section, the reference in that section to
section 3006A of such title does not apply.
apply according to the provisions of this section notwithstanding section
4247(j) of title 18.
(article 2) terminates while the person is, pursuant to this section, in
the custody of the Attorney General, hospitalized, or on conditional release
under a prescribed regimen of medical, psychiatric, or psychological care
or treatment, the provisions of this section establishing requirements and
procedures regarding a person no longer subject to this chapter shall continue
to apply to that person notwithstanding the change of status.
Sec.
Art.
Principals.
Accessory after the fact.
Conviction of lesser included offense.
Attempts.
Conspiracy.
Solicitation.
Fraudulent enlistment, appointment, or separation.
Unlawful enlistment, appointment, or separation.
Desertion.
Absence without leave.
Missing movement.
Contempt toward officials.
Disrespect toward superior commissioned officer.
Assaulting or willfully disobeying superior commissioned officer.
Insubordinate conduct toward warrant officer, noncommissioned
officer, or petty officer.
Failure to obey order or regulation.
Cruelty and maltreatment.
Mutiny or sedition.
Resistance, flight, breach of arrest, and escape.
Releasing prisoner without proper authority.
Unlawful detention.
Noncompliance with procedural rules.
Misbehavior before the enemy.
Subordinate compelling surrender.
Improper use of countersign.
Forcing a safeguard.
Captured or abandoned property.
Aiding the enemy.
Misconduct as prisoner.
Spies.
906a.
106a.
Espionage.
False official statements.
Military property of United States-Loss, damage, destruction,
or wrongful disposition.
Property other than military property of United States-Waste,
spoilage, or destruction.
Improper hazarding of vessel.
Drunken or reckless operation of a vehicle, aircraft, or vessel
Drunk on duty.
912a.
112a.
Wrongful use, possession, etc., of controlled substances.
Misbehavior of sentinel.
Dueling.
Malingering.
Riot or breach of peace.
Provoking speeches or gestures.
Murder.
Manslaughter.
919a.
119a.
Death or injury of an unborn child.
Rape and sexual assault generally.
920a.
120a.
Stalking.
920b.
120b.
Rape and sexual assault of a child.
920c.
120c.
Other sexual misconduct.
Larceny and wrongful appropriation.
Robbery.
Forgery.
923a.
123a.
Making, drawing, or uttering check, draft, or order without
sufficient funds.
Maiming.
Forcible sodomy; bestiality.
Arson.
Extortion.
Assault.
Burglary.
Housebreaking.
Perjury.
Frauds against the United States.
Conduct unbecoming an officer and a gentleman.
General article.
Any person punishable under this chapter who
counsels, commands, or procures its commission; or
be punishable by this chapter; is a principal.
Any person subject to this chapter who, knowing that an offense
punishable by this chapter has been committed, receives, comforts, or assists
the offender in order to hinder or prevent his apprehension, trial, or punishment
shall be punished as a court-martial may direct.
An accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense charged
or an offense necessarily included therein.
chapter, amounting to more than mere preparation and tending, even though
failing, to effect its commission, is an attempt to commit that offense.
punishable by this chapter shall be punished as a court-martial may direct,
unless otherwise specifically prescribed.
to commit an offense although it appears on the trial that the offense was
consummated.
Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.
or others to desert in violation of section 885 of this title (article 85)
or mutiny in violation of section 894 of this title (article 94) shall,
if the offense solicited or advised is attempted or committed, be punished
with the punishment provided for the commission of the offense, but, if the
offense solicited or advised is not committed or attempted, he shall be
punished as a court-martial may direct.
or others to commit an act of misbehavior before the enemy in violation of
section 899 of this title (article 99) or sedition in violation of section
894 of this title (article 94) shall, if the offense solicited or advised
is committed, be punished with the punishment provided for the commission
of the offense, but, if the offense solicited or advised is not committed,
he shall be punished as a court-martial may direct.
Any person who-
by knowingly false representation or deliberate concealment as to his qualifications
for the enlistment or appointment and receives pay or allowances thereunder;
or
false representation or deliberate concealment as to his eligibility for
that separation; shall be punished as a court-martial may direct.
Any person subject to this chapter who effects an enlistment or
appointment in or a separation from the armed forces of any person who is
known to him to be ineligible for that enlistment, appointment, or separation
because it is prohibited by law, regulation, or order shall be punished as
a court-martial may direct.
or place of duty with intent to remain away therefrom permanently;
hazardous duty or to shirk important service; or
enlists or accepts an appointment in the same or another one of the armed
forces without fully disclosing the fact that he has not been regularly
separated, or enters any foreign armed service except when authorized by
the United States; is guilty of desertion.
of his resignation and before notice of its acceptance, quits his post or
proper duties without leave and with intent to remain away therefrom permanently
is guilty of desertion.
be punished, if the offense is committed in time of war, by death or such
other punishment as a court-martial may direct, but if the desertion or
attempt to desert occurs at any other time, by such punishment, other than
death, as a court-martial may direct.
Any member of the armed forces who, without authority-
fails to go to his appointed place of duty at the time prescribed;
goes from that place; or
absents himself or remains absent from his unit, organization,
or place of duty at which he is required to be at the time prescribed; shall
be punished as a court-martial may direct.
Any person subject to this chapter who through neglect or design
misses the movement of a ship, aircraft, or unit with which he is required
in the course of duty to move shall be punished as a court-martial may direct.
Any commissioned officer who uses contemptuous words against the
President, the Vice President, Congress, the Secretary of Defense, the Secretary
of a military department, the Secretary of Homeland Security, or the Governor
or legislature of any State, Commonwealth, or possession in which
he is on duty or present shall be punished as a court-martial may direct.
Any person subject to this chapter who behaves with disrespect
toward his superior commissioned officer shall be punished as a court-martial
may direct.
Any person subject to this chapter who-
any weapon or offers any violence against him while he is in the execution
of his office; or
officer;
shall be punished, if the offense is committed in time of
war, by death or such other punishment as a court-martial may direct, and
if the offense is committed at any other time, by such punishment, other
than death, as a court-martial may direct.
or petty officer
Any warrant officer or enlisted member who
or petty officer, while that officer is in the execution of his office;
officer, or petty officer; or
toward a warrant officer, noncommissioned officer, or petty officer while
that officer is in the execution of his office;
shall be punished as
a court-martial may direct.
Any person subject to this chapter who-
violates or fails to obey any lawful general order or regulation;
having knowledge of any other lawful order issued by a member of
the armed forces, which it is his duty to obey, fails to obey the order;
or
as a court-martial may direct.
Any person subject to this chapter who is guilty of cruelty toward,
or oppression or maltreatment of, any person subject to his orders shall
be punished as a court-martial may direct.
in concert with any other person, to obey orders or otherwise do his duty
or creates any violence or disturbance is guilty of mutiny;
authority, creates, in concert with any other person, revolt, violence, or
other disturbance against that authority is guilty of sedition;
being committed in his presence, or fails to take all reasonable means to
inform his superior commissioned officer or commanding officer of a mutiny
or sedition which he knows or has reason to believe is taking place, is guilty
of a failure to suppress or report a mutiny or sedition.
or failure to suppress or report a mutiny or sedition shall be punished by
death or such other punishment as a court-martial may direct.
Any person subject to this chapter who-
resists apprehension;
flees from apprehension;
breaks arrest; or
escapes from custody or confinement;
shall be punished as a court-martial may direct.
Any person subject to this chapter who, except as provided by law,
apprehends, arrests, or confines any person shall be punished as a court-martial
may direct.
Any person subject to this chapter who-
case of a person accused of an offense under this chapter;or
provision of this chapter regulating the proceedings before, during, or after
trial of an accused;
shall be punished as a court-martial may direct.
Any person subject to this chapter who before or in the presence
of the enemy-
runs away;
shamefully abandons, surrenders, or delivers up any command, unit,
place, or military property which it is his duty to defend;
the safety of any such command, unit, place, or military property;
casts away his arms or ammunition;
is guilty of cowardly conduct;
quits his place of duty to plunder or pillage;
causes false alarms in any command, unit, or place under control
of the armed forces;
or destroy any enemy troops, combatants, vessels, aircraft, or any other
thing, which it is his duty so to encounter, engage, capture, or destroy;
or
combatants, vessels, or aircraft of the armed forces belonging to the United
States or their allies when engaged in battle;
shall be punished by
death or such other punishment as a court-martial may direct.
Any person subject to this chapter who compels or attempts to compel
the commander of any place, vessel, aircraft, or other military property,
or of any body of members of the armed forces, to give it up to an enemy
or to abandon it, or who strikes the colors or flag to any enemy without
proper authority, shall be punished by death or such other punishment as
a court-martial may direct.
Any person subject to this chapter who in time of war discloses
the parole or countersign to any person not entitled to receive it or who
gives to another who is entitled to receive and use the parole or countersign
a different parole or countersign from that which, to his knowledge, he was
authorized and required to give, shall be punished by death or such other
punishment as a court-martial may direct.
Any person subject to this chapter who forces a safeguard shall
suffer death or such other punishment as a court-martial may direct.
taken from the enemy for the service of the United States, and shall give
notice and turn over to the proper authority without delay all captured
or abandoned property in their possession, custody, or control.
fails to carry out the duties prescribed in subsection (a);
buys, sells, trades, or in any way deals in or disposes of captured
or abandoned property, whereby he receives or expects any profit, benefit,
or advantage to himself or another directly or indirectly connected with
himself; or
shall be punished as a court-martial
may direct.
Any person who-
money, or other things; or
intelligence to or communicates or corresponds with or holds any intercourse
with the enemy, either directly or indirectly;
shall suffer death or
such other punishment as a court-martial or military commission may direct.
Any person subject to this chapter who, while in the hands of the
enemy in time of war-
acts without proper authority in a manner contrary to law, custom, or regulation,
to the detriment of others of whatever nationality held by the enemy as
civilian or military prisoners; or
without justifiable cause;
shall be punished as a court-martial may
direct.
Any person who in time of war is found lurking as a spy or acting
as a spy in or about any place, vessel, or aircraft, within the control or
jurisdiction of any of the armed forces, or in or about any shipyard, any
manufacturing or industrial plant, or any other place or institution engaged
in work in aid of the prosecution of the war by the United States, or elsewhere,
shall be tried by a general court-martial or by a military commission and
on conviction shall be punished by death.
(a)(1) Any person subject to this chapter who, with intent or reason to
believe that it is to be used to the injury of the United States or to the
advantage of a foreign nation, communicates, delivers, or transmits, or
attempts to communicate, deliver, or transmit, to any entity described in
paragraph (2), either directly or indirectly, any thing described in paragraph
accused is found guilty of an offense that directly concerns (A) nuclear
weaponry, military spacecraft or satellites, early warning systems, or other
means of defense or retaliation against large scale attack, (B) war plans,
other major weapons system or major element of defense strategy, the accused
shall be punished by death or such other punishment as a court-martial may
direct.
a foreign government;
a faction or party or military or naval force within a foreign
country, whether recognized or unrecognized by the United States; or
of such a government, faction, party, or force.
book, signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, note, instrument, appliance, or information relating to
the national defense.
(b)(1) No person may be sentenced by court-martial to suffer death for
an offense under this section (article) unless-
of the aggravating factors set out in subsection (c); and
circumstances are substantially outweighed by any aggravating circumstances,
including the aggravating factors set out under subsection (c).
evidence introduced on the issue of guilt or innocence;
evidence introduced during the sentencing proceeding; or
all such evidence.
extenuation and mitigation.
under this section (article) only if the members unanimously find, beyond
a reasonable doubt, one or more of the following aggravating factors:
or treason for which either a sentence of death or imprisonment for life
was authorized by statute.
a grave risk of substantial damage to the national security.
a grave risk of death to another person.
under section 836 of this title (Article 36).
Any person subject to this chapter who, with intent to deceive,
signs any false record, return, regulation, order, or other official document,
knowing it to be false, or makes any other false official statement knowing
it to be false, shall be punished as a court-martial may direct.
or wrongful disposition
Any person subject to this chapter who, without proper authority-
sells or otherwise disposes of;
willfully or through neglect damages, destroys, or loses; or
willfully or through neglect suffers to be lost, damaged, sold,
or wrongfully disposed of;
any military property of the United States,
shall be punished as a court-martial may direct.
or destruction
Any person subject to this chapter who willfully or recklessly
wastes, spoils, or otherwise willfully and wrongfully destroys or damages
any property other than military property of the United States shall be
punished as a court-martial may direct.
hazards or suffers to be hazarded any vessel of the armed forces shall suffer
death or such punishment as a court-martial may direct.
to be hazarded any vessel of the armed forces shall be punished as a court-martial
may direct.
in a reckless or wanton manner or while impaired by a substance described
in section 912a(b) of this title (article 112a(b)),
or
or vessel while drunk or when the alcohol concentration in the person's blood
or breath is equal to or exceeds the applicable limit under subsection (b),
shall be punished as a court-martial may direct.
(b)(1) For purposes of subsection (a), the applicable limit on the alcohol
concentration in a person's blood or breath is as follows:
or vessel in the United States, such limit is the lesser of-
the conduct occurred, except as may be provided under paragraph (2) for conduct
on a military installation that is in more than one State; or
or vessel outside the United States, the applicable blood alcohol content
limit is the blood alcohol content limit specified in paragraph (3) or such
lower limit as the Secretary of Defense may by regulation prescribe.
State, if those States have different blood alcohol content limits under their
respective State laws, the Secretary may select one such blood alcohol content
limit to apply uniformly on that installation.
respect to alcohol concentration in a person's blood is 0.10 grams of alcohol
per 100 milliliters of blood and with respect to alcohol concentration in
a person's breath is 0.10 grams of alcohol per 210 liters of breath, as shown
by chemical analysis.
concentration in a person's blood or breath at which operation or control
of a vehicle, aircraft, or vessel is prohibited.
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa
and the term "State" includes each of those jurisdictions.
Any person subject to this chapter other than a sentinel or look-out,
who is found drunk on duty, shall be punished as a court-martial may direct.
manufactures, distributes, imports into the customs territory of the United
States, exports from the United States, or introduces into an installation,
vessel, vehicle, or aircraft used by or under the control of the armed forces
a substance described in subsection (b) shall be punished as a court-martial
may direct.
methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound
or derivative of any such substance.
of controlled substances prescribed by the President for the purposes of
this article.
a list prescribed by the President under clause (2) that is listed in schedules
I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
Any sentinel or lookout who is found drunk or sleeping upon his
post or leaves it before being regularly relieved, shall be punished, if
the offense is committed in time of war, by death or such other punishment
as a court-martial may direct, but if the offense is at any other time, by
such punishment other than death as a court-martial may direct.
Any person subject to this chapter who fights or promotes, or is
concerned in or connives at fighting a duel, or who, having knowledge of
a challenge sent or about to be sent, fails to report the fact promptly
to the proper authority, shall be punished as a court-martial may direct.
Any person subject to this chapter who for the purpose of avoiding
work, duty, or service-
or
shall be punished as a
court-martial may direct.
Any person subject to this chapter who causes or participates in
any riot or breach of the peace shall be punished as a court-martial may
direct.
Any person subject to this chapter who uses provoking or reproachful
words or gestures towards any other person subject to this chapter shall
be punished as a court-martial may direct.
Any person subject to this chapter who, without justification or
excuse, unlawfully kills a human being, when he-
has a premeditated design to kill;
intends to kill or inflict great bodily harm;
is engaged in an act that is inherently dangerous to another and
evinces a wanton disregard of human life; or
suffer such punishment as a court-martial may direct, except that if found
guilty under clause (1) or (4), he shall suffer death or imprisonment for
life as a court-martial may direct.
or inflict great bodily harm, unlawfully kills a human being in the heat
of sudden passion caused by adequate provocation is guilty of voluntary manslaughter
and shall be punished as a court-martial may direct.
or inflict great bodily harm, unlawfully kills a human being -
by culpable negligence; or
while perpetrating or attempting to perpetrate an offense, other
than those named in clause (4) of section 918 of this title (article 118),
directly affecting the person;
is guilty of involuntary manslaughter
and shall be punished as a court-martial may direct.
(a)(1) Any person subject to this chapter who engages in conduct that violates
any of the provisions of law listed in subsection (b) and thereby causes the
death of, or bodily injury (as defined in section 1365 of title 18) to, a
child, who is in utero at the time the conduct takes place, is guilty of
a separate offense under this section and shall, upon conviction, be punished
by such punishment, other than death, as a court-martial may direct, which
shall be consistent with the punishments prescribed by the President for
that conduct had that injury or death occurred to the unborn child's mother.
had knowledge that the victim of the underlying offense was pregnant; or
the unborn child.
or attempts to kill the unborn child, that person shall, instead of being
punished under paragraph (1), be punished as provided under sections 880,
918, and 919(a) of this title (articles 80, 118, and 119(a)) for intentionally
killing or attempting to kill a human being.
not be imposed for an offense under this section.
919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 118, 119(a),
119(b)(2), 120(a), 122, 124, 126, and 128).
consent of the pregnant woman, or a person authorized by law to act on her
behalf, has been obtained or for which such consent is implied by law;
her unborn child; or
in utero, and the term "child in utero" or "child, who is
in utero" means a member of the species homo sapiens, at any stage
of development, who is carried in the womb.
[Note: This statute applies to offenses committed on or after 28 June 2012. The previous versions of Article 120 are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
using unlawful force against that other person;
using force causing or likely to cause death or grievous bodily harm to any person;
threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
first rendering that other person unconscious; or
administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct.
threatening or placing that other person in fear;
causing bodily harm to that other person;
making a fraudulent representation that the sexual act serves a professional purpose; or
inducing a belief by any artifice, pretense, or concealment that the person is another person;
commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to-
impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person; is guilty of sexual assault and shall be punished as a court-martial may direct.
Aggravated Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.
Abusive Sexual Contact. Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.
Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.
Defenses. An accused may raise any applicable defenses available under this chapter or the Rules for Court-Martial. Marriage is not a defense for any conduct in issue in any prosecution under this section.
Definitions. In this section:
contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
the penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.
Touching may be accomplished by any part of the body.
Bodily harm. The term 'bodily harm' means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.
Grievous bodily harm. The term 'grievous bodily harm' means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose.
Force. The term 'force' means-
the use of a weapon;
the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or
inflicting physical harm sufficient to coerce or compel submission by the victim.
Unlawful Force. The term 'unlawful force' means an act of force done without legal justification or excuse.
Threatening or placing that other person in fear. The term 'threatening or placing that other person in fear' means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
Consent.
The term 'consent' means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person's actions.
who wrongfully engages in a course of conduct directed
at a specific person that would cause a reasonable person to
fear death or bodily harm, including sexual assault, to himself
or herself or a member of his or her immediate family;who has knowledge, or should have knowledge, that the
specific person will be placed in reasonable fear of death or
bodily harm, including sexual assault, to himself or herself or
a member of his or her immediate family; andwhose acts induce reasonable fear in the specific
person of death or bodily harm, including sexual assault, to
himself or herself or to a member of his or her immediate
family; is guilty of stalking and shall be punished as a court-martial may
direct.a repeated maintenance of visual or physical
proximity to a specific person; ora repeated conveyance of verbal threat,
written threats, or threats implied by conduct, or a
combination of such threats, directed at or toward a
specific person.The term 'repeated', with respect to conduct, means
two or more occasions of such conduct;The term 'immediate family', in the case of a specific
person, means a spouse, parent, child, or sibling of the
person, or any other family member, relative, or intimate
partner of the person who regularly resides in the household
of the person or who within the six months preceding the
commencement of the course of conduct regularly resided
in the household of the person.[Note: This statute applies to offenses committed on or after 28 June 2012. Article 120b is a new statute designed to address only child sexual offenses. Previous versions of child sexual offenses are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
commits a sexual act upon a child who has not attained the age of 12 years; or
commits a sexual act upon a child who has attained the age of 12 years by-
using force against any person;
threatening or placing that child in fear;
rendering that child unconscious; or
administering to that child a drug, intoxicant, or other similar substance;
is guilty of rape of a child and shall be punished as a court-martial may direct.
Sexual Assault of a Child. Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.
Sexual Abuse of a Child. Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.
Age of Child.
Under 12 Years. In a prosecution under this section, it need not be proven that the accused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense that the accused reasonably believed that the child had attained the age of 12 years.
Under 16 Years. In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.
Proof of Threat. In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.
Marriage. In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is a defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused.
Consent. Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.
Definitions. In this section:
Sexual Act and Sexual Contact. The terms 'sexual act' and 'sexual contact' have the meanings given those terms in section 920(g) of this title (article 120(g)).
_Force. The term 'force' means-
_
the use of a weapon;
the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or
inflicting physical harm.
In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.
Threatening or Placing That Child in Fear. The term 'threatening or placing that child in fear' means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.
Child. The term 'child' means any person who has not attained the age of 16 years.
_Lewd Act. The term 'lewd act' means-
_
any sexual contact with a child;
intentionally exposing one's genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;
intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
[Note: This statute applies to offenses committed on or after 28 June 2012. Article 120c is a new statute designed to address other sexual offenses not already addressed in Article 120 and Article 120b. Previous versions of these other sexual offenses are located as follows: for offenses committed on or before 30 September 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.]
knowingly and wrongfully views the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy;
knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy; or
knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);
is guilty of an offense under this section and shall be punished as a court-martial may direct.
Forcible Pandering. Any person subject to this chapter who compels another person to engage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.
Indecent Exposure. Any person subject to this chapter who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.
__
Act of Prostitution. The term 'act of prostitution' means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) on account of which anything of value is given to, or received by, any person.
Private Area. The term 'private area' means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.
Reasonable Expectation of Privacy. The term 'under circumstances in which that other person has a reasonable expectation of privacy' means-
circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or
circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.
Broadcast. The term 'broadcast' means to electronically transmit a visual image with the intent that it be viewed by a person or persons.
Distribute. The term 'distribute' means delivering to the actual or constructive possession of another, including transmission by electronic means.
Indecent Manner. The term 'indecent manner' means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.
or withholds, by any means, from the possession of the owner or of any other
person any money, personal property, or article of value of any kind-
the use and benefit of property or to appropriate it to his own use or the
use of any person other than the owner, steals that property and is guilty
of larceny; or
the use and benefit of property or to appropriate it to his own use or the
use of any person other than the owner, is guilty of wrongful appropriation.
be punished as a court-martial may direct.
Any person subject to this chapter who with intent to steal takes
anything of value from the person or in the presence of another, against
his will, by means of force or violence or fear of immediate or future injury
to his person or property or to the person or property of a relative or member
of his family or of anyone in his company at the time of the robbery, is
guilty of robbery and shall be punished as a court-martial may direct.
Any person subject to this chapter who, with intent to defraud-
writing which would, if genuine, apparently impose a legal liability on another
or change his legal right or liability to his prejudice; or
to be so made or altered;
is guilty of forgery and shall be punished
as a court-martial may direct.
funds
Any person subject to this chapter who-
to defraud; or
with intent to deceive;
makes, draws, utters, or delivers any check,
draft, or order for the payment of money upon any bank or other depository,
knowing at the time that the maker or drawer has not or will not have sufficient
funds in, or credit with, the bank or other depository for the payment of
that check, draft, or order in full upon its presentment, shall be punished
as a court-martial may direct. The making, drawing, uttering, or delivering
by a maker or drawer of a check, draft, or order, payment of which is refused
by the drawee because of insufficient funds of the maker or drawer in the
drawee's possession or control, is prima facie evidence of his intent to
defraud or deceive and of his knowledge of insufficient funds in, or credit
with, that bank or other depository, unless the maker or drawer pays the
holder the amount due within five days after receiving notice, orally or
in writing, that the check, draft, or order was not paid on presentment.
In this section, the word "credit" means an arrangement or
understanding, express or implied, with the bank or other depository for
the payment of that check, draft, or order.
Any person subject to this chapter who, with intent to injure,
disfigure, or disable, inflicts upon the person of another an injury which
seriously disfigures his person by a mutilation thereof;
destroys or disables any member or organ of his body; or
seriously diminishes his physical vigor by the injury of any member
or organ;
is guilty of maiming and shall be punished as a court-martial may
direct.
Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex by unlawful force or without the consent of the other person is guilty of forcible sodomy and shall be punished as a court-martial may direct.
Any person subject to this chapter who engages in unnatural carnal copulation with an animal is guilty of bestiality and shall be punished as a court-martial may direct.
Penetration, however slight, is sufficient to complete an offense under subsection (a) or (b).
burns or sets on fire an inhabited dwelling, or any other structure, movable
or immovable, wherein to the knowledge of the offender there is at the time
a human being, is guilty of aggravated arson and shall be punished as court-martial
may direct.
burns or sets fire to the property of another, except as provided in subsection
(a), is guilty of simple arson and shall be punished as a court-martial
may direct.
Any person subject to this chapter who communicates threats to
another person with the intention thereby to obtain anything of value or
any acquittance, advantage, or immunity is guilty of extortion and shall
be punished as a court-martial may direct.
unlawful force or violence to do bodily harm to another person, whether or
not the attempt or offer is consummated, is guilty of assault and shall
be punished as a court-martial may direct.
likely to produce death or grievous bodily harm; or
with or without a weapon;
is guilty of aggravated assault and shall
be punished as a court-martial may direct.
Any person subject to this chapter who, with intent to commit an
offense punishable under section 918-928 of this title (article 118-128),
breaks and enters, in the nighttime, the dwelling house of another, is guilty
of burglary and shall be punished as a court-martial may direct.
Any person subject to this chapter who unlawfully enters the building
or structure of another with intent to commit a criminal offense therein
is guilty of housebreaking and shall be punished as a court-martial may direct.
Any person subject to this chapter who in a judicial proceeding
or in a course of justice willfully and corruptly-
for an oath, gives any false testimony material to the issue or matter of
inquiry; or
penalty or perjury as permitted under section 1746 of title 28, United States
Code, subscribes any false statement material to the issue or matter of
inquiry;
is guilty of perjury and shall be punished as a court-martial may
direct.
Any person subject to this chapter-
or
for approval or payment, any claim against the United States or any officer
thereof;
of any claim against the United States or any officer thereof-
any false or fraudulent statements;
the oath to be false; or
paper, or uses any such signature knowing it to be forged or counterfeited;
or other property of the United States, furnished or intended for the armed
forces thereof, knowingly delivers to any person having authority to receive
it, any amount thereof less than that for which he receives a certificate
or receipt; or
receipt of any property of the United States furnished or intended for the
armed forces thereof, makes or delivers to any person such writing without
having full knowledge of the truth of the statements therein contained and
with intent to defraud the United States;
shall, upon conviction, be punished as a court-martial may direct.
Any commissioned officer, cadet, or midshipman who is convicted
of conduct unbecoming an officer and a gentleman shall be punished as a court-martial
may direct.
Though not specifically mentioned in this chapter, all disorders
and neglects to the prejudice of good order and discipline in the armed forces,
all conduct of a nature to bring discredit upon the armed forces, and crimes
and offenses not capital, of which persons subject to this chapter may be
guilty, shall be taken cognizance of by a general, special, or summary court-martial,
according to the nature and degree of the offense, and shall be punished
at the discretion of that court.
Sec.
Art.
Courts of inquiry.
Authority to administer oaths and to act as notary.
Articles to be explained.
Complaints of wrongs.
Redress of injuries to property.
Delegation by the President.
any person authorized to convene a general court-martial or by any other
person designated by the Secretary concerned for that purpose, whether or
not the persons involved have requested such an inquiry.
For each court of inquiry the convening authority shall also appoint counsel
for the court.
inquiry shall be designated as a party. Any person subject to this chapter
or employed by the Department of Defense who has a direct interest in the
subject of inquiry has the right to be designated as a party upon request
to the court. Any person designated as a party shall be given due notice
and has the right to be present, to be represented by counsel, to cross-examine
witnesses, and to introduce evidence.
only for cause stated to the court.
of inquiry shall take an oath to faithfully perform their duties.
before courts of inquiry, as provided for courts-martial.
opinions or make recommendations unless required to do so by the convening
authority.
shall be authenticated by the signatures of the president and counsel for
the court and forwarded to the convening authority. If the record cannot
be authenticated by the president, it shall be signed by a member in lieu
of the president. If the record cannot be authenticated by the counsel for
the court, it shall be signed by a member in lieu of the counsel.
(a)(1) The sections of this title (articles of the Uniform Code of Military
Justice) specified in paragraph (3) shall be carefully explained to each
enlisted member at the time of (or within fourteen days after)-
the member's initial entrance on active duty; or
the member's initial entrance into a duty status with a reserve
component.
the case of a member of a reserve component, after the member has completed
basic or recruit training; and
825, 827, 831, 837, 838, 855,877-934, and 937-939 of this title(articles
2, 3, 7-15, 25, 27, 31, 37, 38, 55, 77-134, and 137-139).
prescribed by the President under such Code shall be made available to a
member on active duty or to a member of a reserve component, upon request
by the member, for the member's personal examination.
Any member of the armed forces who believes himself wronged by
his commanding officer, and who, upon due application to that commanding
officer, is refused redress, may complain to any superior commissioned officer,
who shall forward the complaint to the officer exercising general court-martial
jurisdiction over the officer against whom it is made. The officer exercising
general court-martial jurisdiction shall examine into the complaint and
take proper measures for redressing the wrong complained of; and he shall,
as soon as possible, send to the Secretary concerned a true statement of
that complaint, with the proceedings had thereon.
damage has been done to the property of any person or that his property has
been wrongfully taken by members of the armed forces, he may, under such
regulations as the Secretary concerned may prescribe, convene a board to
investigate the complaint. The board shall consist of from one to three commissioned
officers and, for the purpose of that investigation, it has power to summon
witnesses and examine them upon oath, to receive depositions or other documentary
evidence, and to assess the damages sustained against the responsible parties.
The assessment of damages made by the board is subject to the approval of
the commanding officer, and in the amount approved by him shall be charged
against the pay of the offenders. The order of the commanding officer directing
charges herein authorized is conclusive on any disbursing officer for the
payment by him to the injured parties of the damages as assessed and approved.
detachment to which they belong is known, charges totaling the amount of
damages assessed and approved may be made in such proportion as may be considered
just upon the individual members thereof who are shown to have been present
at the scene at the time the damages complained of were inflicted, as determined
by the approved findings of the board.
The President may delegate any authority vested in him under this
chapter, and provide for the subdelegation of any such authority.
Sec.
Art.
Status.
Judges.
Organization and employees.
Procedure.
Annuities for judges and survivors.
Code committee.
There is a court of record known as the United States Court of
Appeals for the Armed Forces. The court is established under article I of
the Constitution. The court is located for administrative purposes only
in the Department of Defense.
The United States Court of Appeals for the Armed Forces consists
of five judges.
the President, by and with the advice and consent of the Senate, for a specified
term determined under paragraph (2). A judge may serve as a senior judge
as provided in subsection (e).
In the case of a judge who is appointed after January 31 and before July 31 of any year, the term shall expire on July 31 of the year in which the fifteenth anniversary of the appointment occurs.
In the case of a judge who is appointed after July 31 of any year and before February 1 of the following year, the term shall expire fifteen years after such July 31.
from the same political party, and no person may be appointed to be a judge
of the court unless the person is a member of the bar of a Federal court
or the highest court of a State.
Judges of the court may be removed from office by the President,
upon notice and hearing, for-
neglect of duty;
misconduct; or
mental or physical disability.
A judge may not be removed
by the President for any other cause.
Each judge of the court is entitled to the same salary and travel
allowances as are, and from time to time may be, provided for judges of the
United States Court of Appeals.
(1)(A) A former judge of the court who is receiving retired pay or an
annuity under section 945 of this title (article 145) or under subchapter
III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The
chief judge of the court may call upon an individual who is a senior judge
of the court under this subparagraph, with the consent of the senior judge,
to perform judicial duties with the court-
because of illness or other disability;
or
judge has been appointed, the chief judge of the court may call upon that
judge (with the judge's consent) to continue to perform judicial duties
with the court until the vacancy is filled. A judge who, upon the expiration
of the judge's term, continues to perform judicial duties with the court
without a break in service under this subparagraph shall be a senior judge
while such service continues.
judicial duties with the court an amount equal to the daily equivalent of
the annual rate of pay provided for a judge of the court. Such pay shall
be in lieu of retired pay and in lieu of an annuity under section 945 of
this title (Article 145), subchapter III of chapter 83 or subchapter II
of chapter 84 of title 5, or any other retirement system for employees of
the Federal Government.
(2), shall be provided with such office space and staff assistance as the
chief judge considers appropriate and shall be entitled to the per diem,
travel allowances, and other allowances provided for judges of the court.
of the United States with respect to his status as a senior judge, but only
during periods the senior judge is performing duties referred to in paragraph
(2). For the purposes of section 205 of title 18, a senior judge shall be
considered to be a special Government employee during such periods. Any provision
of law that prohibits or limits the political or business activities of
an employee of the United States shall apply to a senior judge only during
such periods.
judges of the court. The chief judge of the court shall transmit such rules,
and any amendments to such rules, to the Committees on Armed Services of
the Senate and the House of Representatives not later than 15 days after
the issuance of such rules or amendments, as the case may be.
to the Civil Service Retirement and Disability System) and chapter 84 of
such title (relating to the Federal Employees' Retirement System) and for
purposes of any other Federal Government retirement system for employees
of the Federal Government-
in paragraph (1) shall not be considered creditable service;
retirement contribution under section 8334, 8343, 8422, or 8432 of title
5 or under other such retirement system for any period during which the
senior judge performs duties referred to in paragraph (1);
retirement system with respect to a senior judge for any period during which
the senior judge performs duties referred to in paragraph (1); and
for any period during which the senior judge performs duties referred to
in paragraph (1).
chief judge of the court, may designate a judge of a United States Court
of Appeals or of a United States District Court to perform the duties of
judge of the United States Court of Appeals for the Armed Forces-
because of illness or other disability; or
in any case in which a judge of the court recuses himself; or
during a period when there is a vacancy on the court and in the
opinion of the chief judge of the court such a designation is necessary for
the proper dispatch of the business of the court.
be made under paragraph (1) unless the chief judge has determined that no
person is available to perform judicial duties with the court as a senior
judge under subsection (e).
of the designated judge and the concurrence of the chief judge of the court
of appeals or district court concerned.
judge in connection with the performance of duties for the court shall be
paid from funds available for the payment of per diem and such allowances
for judges of the court.
A vacancy on the court does not impair the right of the remaining
judges to exercise the powers of the court.
Armed Forces shall be the judge of the court in regular active service who
is senior in commission among the judges of the court who-
have served for one or more years as judges of the court; and
have not previously served as chief judge.
active service who has served as a judge of the court for at least one year,
the judge of the court in regular active service who is senior in commission
and has not served previously as chief judge shall act as the chief judge.
serve as the chief judge under paragraph (1) for a term of five years. If
no other judge is eligible under paragraph (1) to serve as chief judge upon
the expiration of that term, the chief judge shall continue to serve as chief
judge until another judge becomes eligible under that paragraph to serve
as chief judge.
(4)(A) The term of a chief judge shall be terminated before the end of
five years if-
court; or
that such judge desires to be relieved of his duties as chief judge.
The effective date of a termination of the term under subparagraph
shall be the date on which the chief judge leaves regular active service
or the date of the notification under subparagraph (A)(ii), as the case
may be.
achief judge, the duties shall be performed by the judge of the court in
active service who is present, able, and qualified to act, and is next in
precedence.
The chief judge of the court shall have precedence and preside
at any session that he attends. The other judges shall have precedence and
preside according to the seniority of their original commissions. Judges
whose commissions bear the same date shall have precedence according to
seniority in age.
the Armed Forces are excepted from the competitive service. A position of
employment under the court that is provided primarily for the service of
one judge of the court, reports directly to the judge, and is a position
of a confidential character is excepted from the competitive service. Appointments
to positions referred to in the preceding sentences shall be made by the
court, without the concurrence of any other officer or employee of the executive
branch, in the same manner as appointments are made to other executive branch
positions of a confidential or policy-determining character for which it
is not practicable to examine or to hold a competitive examination. Such
positions shall not be counted as positions of that character for purposes
of any limitation on the number of positions of that character provided in
law.
(1), preference shall be given, among equally qualified persons, to persons
who are preference eligibles (as defined in section 2108(3) of title 5).
The United States Court of Appeals for the Armed Forces may prescribe
its rules of procedure and may determine the number of judges required to
constitute a quorum.
as a judge of the United States Court of Appeals for the Armed Forces is
eligible for an annuity under this section upon separation from civilian
service in the Federal Government. A person who continues service with the
court as a senior judge under section 943(e)(1)(B) of this title (art. 143(e)(1)(B))
upon the expiration of the judge's term shall be considered to have been
separated from civilian service in the Federal Government only upon the termination
of that continuous service.
be paid that annuity if, at the time he becomes eligible to receive that
annuity, he elects to receive that annuity in lieu of any other annuity
for which he may be eligible at the time of such election (whether an immediate
or a deferred annuity) under subchapter III of chapter 83 or subchapter II
of chapter 84 of title 5 or any other retirement system for civilian employees
of the Federal Government. Such an election may not be revoked.
(3)(A) The Secretary of Defense shall notify the Director of the Office
of Personnel Management whenever an election under paragraph (2) is made
affecting any right or interest under subchapter III of chapter 83 or subchapter
11 of chapter 85 of title 5 based on service as a judge of the United States
Court of Appeals for the Armed Forces.
of a person making an election under (2), the Director shall determine the
amount of the person's lump-sum credit under subchapter 111 of chapter 83
or subchapter II of chapter 84 of title 5, as applicable, and shall request
the Secretary of the Treasury to transfer such amount from the Civil Service
Retirement and Disability Fund to the Department of Defense Military Retirement
Fund. The Secretary of the Treasury shall make any transfer so requested.
of title 5 for purposes of this paragraph -
of such title; and
not be a basis for excluding interest.
The annuity payable under this section to a person who makes an
election under subsection (a)(2) is 80 percent of the rate of pay for a judge
in active service on the United States Court of Appeals for the Armed Forces
as of the date on which the person is separated from civilian service.
Nothing in this section affects any right of any person to participate
in the thrift savings plan under section 8351 of title 5 of subchapter III
of chapter 84 of such title.
The Secretary of Defense shall prescribe by regulation a program
to provide annuities for survivors and former spouses of persons receiving
annuities under this section by reason of elections made by such persons
under subsection (a)(2). That program shall, to the maximum extent practicable,
provide benefits and establish terms and conditions that are similar to those
provided under survivor and former spouse annuity programs under other retirement
systems for civilian employees of the Federal Government. The program may
include provisions for the reduction in the annuity paid the person as a
condition for the survivor annuity. An election by a judge (including a senior
judge) or former judge to receive an annuity under this section terminates
any right or interest which any other individual may have to a survivor
annuity under any other retirement system for civilian employees of the Federal
Government based on the service of that judge or former judge as a civilian
officer or employee of the Federal Government (except with respect to an
election under subsection (g)(1)(B)).
The Secretary of Defense shall periodically increase annuities
and survivor annuities paid under this section in order to take account of
changes in the cost of living. The Secretary shall prescribe by regulation
procedures for increases in annuities under this section. Such system shall,
to the maximum extent appropriate, provide cost-of-living adjustments that
are similar to those that are provided under other retirement systems for
civilian employees of the Federal Government.
A person who is receiving an annuity under this section by reason
of service as a judge of the court and who is appointed to a position in
the Federal Government shall, during the period of such person's service
in such position, be entitled to receive only the annuity under this section
or the pay for that position, whichever is higher.
of service as a judge of the court and who later is appointed as a justice
or judge of the United States to hold office during good behavior and who
retires from that office, or from regular active service in that office,
shall be paid either-
the annuity under this section, or
the annuity or salary to which he is entitled by reason of his
service as such a justice or judge of the United States, as determined by
an election by that person at the time of his retirement from the office,
or from regular active service in the office, of justice or judge of the
United States. Such an election may not be revoked.
to paragraph (1)(B) terminates (A) any election previously made by such person
to provide a survivor annuity pursuant to subsection (d), and (B) any right
of any other individual to receive a survivor annuity pursuant to subsection
Annuities and survivor annuities paid under this section shall
be paid out of the Department of Defense Military Retirement Fund.
of Appeals for the Armed Forces, performed civilian service of a type making
such person subject to the Civil Service Retirement System; and
of the Federal Employees' Retirement System Act of 1986, by virtue of being
appointed as such a judge, but for the fact that such person has not had
a break in service of a sufficient duration to be considered someone who
is being reemployed by the Federal Government.
be eligible to make an election under section 301(a)(2) of the Federal Employees'
Retirement System Act of 1986 to the same extent and in the same manner
(including subject to the condition set forth in section 301(d) of such Act)
as if such person's appointment constituted reemployment with the Federal
Government.
(Added Pub. L. 101-189, Div. A, Title XIII, § 1301(c),
Nov. 29, 1989, 103 Stat. 1572, and amended Pub. L. 102-190, Div. A,
Title X, § 1061(b)(1)(C), Dec. 5, 1991, 105 Stat. 1474; Pub. L. 102-484, Div. A, Title X, §§ 1052(11), 1062(a)(1),
Oct. 23, 1992, 106 Stat. 2499, 2504.)
A committee shall meet at least annually and shall make an annual
comprehensive survey of the operation of this chapter.
The committee shall consist of-
Forces;
Chief Counsel of the Coast Guard, and the Staff Judge Advocate to the Commandant
of the Marine Corps; and
to the Committees on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives; and
to the Secretary of Defense, the Secretaries of the military departments,
and the Secretary of Homeland Security.
Information on the number and status of pending cases.
Information from the Judge Advocates General and the Staff Judge Advocate to the
Commandant of the Marine Corps on the following:
information on compliance with processing time goals;
discussions of the circumstances surrounding cases in which general court-martial or special court-martial convictions are reversed as a result of command influence or denial of the right to a speedy review or otherwise remitted due to loss of records of trial or other administrative deficiencies; and
discussions of cases in which a provision of this chapter is held unconstitutional.
Measures implemented by each armed force to ensure the ability of judge advocates to competently participate as trial and defense counsel in, and preside as military judges over, capital cases, national security cases, sexual assault cases, and proceedings of military commissions.
The independent views of the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps on the sufficiency of resources available within their respective armed forces, including total workforce, funding, training, and officer and enlisted grade structure, to capably perform military justice functions.
uniformity of policies as to sentences;
amendments to this chapter; and
any other matter the committee considers appropriate.
DIRECTIVE
January 22, 1985
NUMBER 5525.7
GC/IG, DoD
Implementation of the Memorandum of Understanding Between the Department
of Justice and the Department of Defense Relating to the Investigation and
Prosecution of Certain Crimes
DoD Directive 1355.1, "Relationships
with the Department of Justice on Grants of Immunity and the Investigation
and Prosecution of Certain ~Crimes," July 21, 1981 (hereby canceled)
Memorandum of Understanding Between the Department
Relating to the Investigation and Prosecution of Certain Crimes, August
1984
Title 18, United State Code
Title 10, United States Code, Sections 801-940
(Articles 1-140), "Uniform Code of Military Justice (UCMJ)"
Manual for Courts-Martial, United States, 1984
(R.C.M. 704)
This Directive reissues reference (a), updates policy and
procedures, assigns responsibilities, and implements the 1984 Memorandum
of Understanding (MOU) between the Department of Justice (DoJ) and the Department
of Defense (DoD).
This Directive applies to the Office of the Secretary of
Defense, the Military Departments, the Office of Inspector General, DoD,
the Organization of the Joint Chiefs of Staff, the Defense Agencies, and
Unified and Specified Commands (hereafter referred to collectively as "DoD
Components"). The term "DoD criminal investigative organizations,"
as used herein, refers collectively to the United States Army Criminal Investigation
Command (USACIDC); Naval Investigative Service (NIS); U.S. Air Force Office
of Special Investigations (AFOSI), and Defense Criminal Investigative Service
(DCIS), Office of the Inspector General, DoD.
It is DoD policy to maintain effective working relationships
with the DoJ in the investigation and prosecution of crimes involving the
programs, operations, or personnel of the Department of Defense.
With respect to inquiries for which the DoJ has assumed investigative
responsibility based on the MOU, DoD investigative agencies should seek to
participate jointly with DoJ investigative agencies whenever the inquiries
relate to the programs, operations, or personnel of the Department of Defense.
This applies to cases referred to the Federal Bureau of Investigation (FBI)
under paragraph C.1.a. of the attached MOU (see enclosure
primary investigative responsibility by a DoJ prosecutor. DoD components
shall comply with the terms of the MOU and DoD Supplemental Guidance (_
see_ enclosure 1).
(IG, DoD), shall:
forth in this Directive.
the terms of the MOU.
shall:
in this Directive.
aspects of the MOU.
Provide specific guidance, as appropriate.
Modify the DoD Supplemental Guidance at enclosure 1, with the concurrence
of the IG, DoD, after requesting comments from affected DoD Components.
establish procedures to implement the policies set forth in this Directive.
This Directive is effective immediately. The Military Departments
shall forward two copies of implementing documents to the Inspector General,
Department of Defense, within 90 days. Other DoD Components shall disseminate
this Directive to appropriate personnel.
Signed by William H. Taft, IV
Deputy Secretary of Defense
Enclosure-1
Memorandum of Understanding Between the
Departments of Justice And Defense Relating to the Investigation and Prosecution
of Certain Crimes
DEFENSE
This enclosure contains the verbatim text of the 1984 Memorandum
of Understanding Between the Departments of Justice and Defense Relating
to the Investigation and Prosecution of Certain Crimes (reference (b)). Matter
that is identified as "DoD Supplemental Guidance" has been added
by the Department of Defense. DoD Components shall comply with the MOU and
the DoD Supplemental Guidance.
BETWEEN THE DEPARTMENTS OF
JUSTICE
AND DEFENSE RELATING TO THE
INVESTIGATION AND
PROSECUTION OF
CERTAIN CRIMES
The Department of Justice has primary responsibility for enforcement
of federal laws in the United States District Courts. The Department of Defense
has responsibility for the integrity of its programs, operations and installations
and for the discipline of the Armed Forces. Prompt administrative actions
and completion of investigations within the two (2) year statute of limitations
under the Uniform Code of Military Justice require the Department of Defense
to assume an important role in federal criminal investigations. To encourage
joint and coordinated investigative efforts, in appropriate cases where the
Department of Justice assumes investigative responsibility for a matter relating
to the Department of Defense, it should share information and conduct the
inquiry jointly with the interested Department of Defense investigative agency.
It
is neither feasible nor desirable to establish inflexible rules regarding
the responsibilities of the Department of Defense and the Department of Justice
as to each matter over which they may have concurrent interest. Informal
arrangements and agreements within the spirit of this MOU are permissible
with respect to specific crimes or investigations.
The Department of Defense investigative agencies will refer
to the FBI on receipt all significant allegations of bribery and conflict
of interest involving military or civilian personnel of the Department of
Defense. In all corruption matters the subject of a referral to the FBI,
the Department of Defense shall obtain the concurrence of the Department
of Justice prosecutor or the FBI before initiating any independent investigation
preliminary to any action under the Uniform code of Military Justice. If
the Department of Defense is not satisfied with the initial determination,
the matter will be reviewed by the Criminal Division of the Department of
Justice.
The FBI will notify the referring agency promptly regarding
whether they accept the referred matters for investigation. The FBI will
attempt to make such decision in one (1) working day of receipt in such
matters.
A. Certain bribery and conflict of interest allegations (also referred
to as "corruption" offenses in the MOU) are to be referred immediately
to the FBI.
B. For the purposes of this section, bribery and conflict of interest
allegations are those which would, if proven, violate 18 U.S.C., Sections
201, 203, 205, 208, 209, or 219 (reference (c)).
C. Under paragraph C.1.a., DoD criminal investigative organizations
shall refer to the FBI those "significant" allegations of bribery
and conflict of interest that implicate directly military or civilian personnel
of the Department of Defense, including allegations of bribery or conflict
of interest that arise during the course of an ongoing investigation.
retired, or former General or Flag officers and civilians in grade GS-16
and above, the Senior Executive Service and the Executive Level will be
considered "significant" for purposes of referral to the FBI.
of whether the matter is "significant" for purposes of referral
to the FBI should be made in light of the following factors: sensitivity
of the DoD program, involved, amount of money in the alleged bribe, number
of DoD personnel implicated, impact on the affected DoD program, and with
respect to military personnel, whether the matter normally would be handled
under the Uniform Code of Military Justice (reference (d)). Bribery and
conflicts of interest allegations warranting consideration of Federal prosecution,
which were not referred to the FBI based on the application of these guidelines
and not otherwise disposed of under reference (d), will be developed and
brought to the attention of the Department of Justice through the "conference"
mechanism described in paragraph C.1.b. of the MOU(reference (b)).
D. Bribery and conflict of interest allegations when military or DoD
civilian personnel are not subjects of the investigation are not covered
by the referral requirement of paragraph C.1.a of reference (b). Matters
in which the suspects are solely DoD contractors and their subcontractors,
such as commercial bribery between a DoD subcontractor and a DoD prime contractor,
do not require referral upon receipt to the FBI. The "conference"
procedure described in paragraph C.1.b. of reference (b) shall be used in
these types of cases.
E. Bribery and conflict of interest allegations that arise from events
occurring outside the United States, its territories, and possessions, and
requiring investigation outside the United States, its territories, and
possessions need not be referred to the FBI.
of Government Property
The Department of Justice and the Department of Defense have
investigative responsibility for frauds against the Department of Defense
and theft and embezzlement of Government property from the Department of
Defense. The Department of Defense will investigate frauds against the Department
of Defense and theft of government property from the Department of Defense.
Whenever a Department of Defense investigative agency identifies a matter
which, if developed by investigation, would warrant federal prosecution,
it will confer with the United States Attorney or the Criminal Division,
the Department of Justice, and the FBI field office. At the time of this
initial conference, criminal investigative responsibility will be determined
by the Department of Justice in consultation with the Department of Defense.
A. Unlike paragraph C.1.a. of the MOU (reference (b)), paragraph C.1.b.
does not have an automatic referral requirement. Under paragraph C.1.b.,
DoD criminal investigative organizations shall confer with the appropriate
federal prosecutor and the FBI on matters which, if developed by investigation,
would warrant Federal prosecution. This "conference" serves to
define the respective roles of DoD criminal investigative organizations and
the FBI on a case-by-case basis. Generally, when a conference is warranted,
the DoD criminal investigative organization shall arrange to meet with the
prosecutor and shall provide notice to the FBI that such meeting is being
held. Separate conferences with both the prosecutor and the FBI normally
are not necessary.
B. When investigations are brought to the attention of the Defense
Procurement Fraud Unit (DPFU), such contact will satisfy the "conference"
requirements of paragraph C.1.b. (reference (b)) as to both the prosecutor
and the FBI.
C. Mere receipt by DoD criminal investigative organizations of raw
allegations of fraud or theft does not require conferences with the DoJ and
the FBI. Sufficient evidence should be developed before the conference to
allow the prosecutor to make an informed judgment as to the merits of a case
dependent upon further investigation. However, DoD criminal investigative
organizations should avoid delay in scheduling such conferences, particularly
in complex fraud cases, because an early judgment by a prosecutor can be of
assistance in focusing the investigation on those matters that most likely
will result in criminal prosecution.
Crimes (other than those covered by paragraph C.1.) committed
on a military installation will be investigated by the Department of Defense
investigative agency concerned and, when committed by a person subject to
the Uniform Code of Military Justice, prosecuted by the Military Department
concerned. The Department of Defense will provide immediate notice to the
Department of Justice of significant cases in which an individual subject/victim
is other than a military member or dependent thereof.
When a crime (other than those covered by paragraph C.1.)
has occurred on a military installation and there is reasonable basis to
believe that it has been committed by a person or persons, some or all of
whom are not subject to the Uniform Code of Military Justice, the Department
of Defense investigative agency will provide immediate notice of the matter
to the appropriate Department of Justice investigative agency unless the Department
of Justice has relieved the Department of Defense of the reporting requirement
for that type or class of crime.
A. Subsection C.2. of the MOU (reference (b)) addresses crimes committed
on a military installation other than those listed in paragraphs C.1.a. (bribery
and conflict of interest) and C.1.b. (fraud, theft, and embezzlement against
the Government).
B. Unlike paragraph C.1.a. of reference (b), which requires "referral"
to the FBI of certain cases, and paragraph C.1.b., which requires "conferences"
with respect to certain cases, subsection C.2. requires only that "notice"
be given to DoJ of certain cases. Relief from the reporting requirement
of subsection C.2. may be granted by the local U.S. attorney as to types or
classes of cases.
C. For purposes of paragraph C.2.a. (when the subjects can be tried
by court-martial or are unknown), an allegation is "significant"
for purposes of required notice to the DoJ only if the offense falls within
the prosecutorial guidelines of the local U.S. attorney. Notice should be
given in other cases when the DoD Component believes that Federal prosecution
is warranted or otherwise determines that the case may attract significant
public attention.
BE TRIED BY COURT-MARTIAL
Crimes (other than those covered by paragraph C.1.) committed
outside a military installation by persons subject to the Uniform Code of
Military Justice which, normally, are tried by court-martial will be investigated
and prosecuted by the Department of Defense. The Department of Defense will
provide immediate notice of significant cases to the appropriate Department
of Justice investigative agency. The Department of Defense will provide immediate
notice in all cases where one or more subjects is not under military jurisdiction
unless the Department of Justice has relieved the Department of Defense of
the reporting requirement for that type or class of crime.
For purposes of this paragraph, an allegation is "significant"
for purposes of required notice to the DoJ only if the offense falls within
prosecutorial guidelines of the local U.S. attorney. Notice should be given
in other cases when the DoD Component believes that Federal prosecution is
warranted, or otherwise determines that the case may attract significant
public attention.
When there are reasonable grounds to believe that a Federal
crime (other than those covered by paragraph C.1.) normally not tried by
court-martial, has been committed outside a military installation by a person
subject to the Uniform Code of Military Justice, the Department of Defense
investigative agency will immediately refer the case to the appropriate
Department of Justice investigative agency unless the Department of Justice
has relieved the Department of Defense of the reporting requirement for that
type or class of crime.
Referrals, notices, reports, requests and the general transfer
of information under this Memorandum normally should be between the FBI or
other Department of Justice investigative agency and the appropriate Department
of Defense investigative agency at the field level.
If a Department
of Justice investigative agency does not accept a referred matter and the
referring Department of Defense investigative agency then, or subsequently,
believes that evidence exists supporting prosecution before civilian courts,
the Department of Defense agency may present the case to the United States
Attorney or the Criminal Division, Department of Justice, for review.
In cases where a Department of Defense or Department of Justice
investigative agency has primary responsibility and it requires limited assistance
to pursue outstanding leads, the investigative agency requiring assistance
will promptly advise the appropriate investigative agency in the other Department
and, to the extent authorized by law and regulations, the requested assistance
should be provided without assuming responsibility for the investigation.
of Justice will designate such Department of Defense attorneys as it deems
desirable to be Special Assistant United States Attorneys for use where the
effective prosecution of cases may be facilitated by the Department of Defense
attorneys.
in United States District Courts whenever appropriate to recover monies lost
as a result of crimes against the Department of Defense; the Department
of Defense will provide appropriate assistance to facilitate such actions.
the Department of Defense prior to initiating action against an individual
subject to the Uniform Code of Military Justice.
of Defense with regard to its Department of Defense-related cases and investigations
in order to effectively coordinate the use of civil, criminal and administrative
remedies.
Prosecution of Cases and Grants of Immunity
A. The authority of court-martial convening authorities to refer cases
to trial, approve pretrial agreements, and issue grants of immunity under
the UCMJ (reference (d)) extends only to trials by court-martial. In order
to ensure that such actions do not preclude appropriate action by Federal
civilian authorities in cases likely to be prosecuted in the U.S. district
courts, court-martial convening authorities shall ensure that appropriate
consultation as required by this enclosure has taken place before trial by
court-martial, approval of a pretrial agreement, or issuance of a grant of
immunity in cases when such consultation is required.
B. Only a general court-martial convening authority may grant immunity
under the UCMJ (reference (d)), and may do so only in accordance with R.C.M.
704 (reference (e)).
justice system:
for one or more offenses under reference (d).
from the use of testimony, statements, and any information directly or indirectly
derived from such testimony or statements by that person in a later court-martial.
convening authority shall ensure that there has been appropriate consultation
with the DoJ with respect to offenses in which consultation is required by
this enclosure.
aiding the enemy, sabotage, spying, or violation of rules or statutes concerning
classified information or the foreign relations of the United States shall
be forwarded to the General Counsel of the Department of Defense for the purpose
of consultation with the DoJ. The General Counsel shall obtain the views
of other appropriate elements of the Department of Defense in furtherance
of such consultation.
C. The authority of court-martial convening authorities extends only
to grants of immunity from action under reference (d). Only the Attorney
General or other authority designated under 18 U.S.C. Secs. 6001-6005 (reference
(c)) may authorize action to obtain a grant of immunity with respect to trials
in the U.S. district courts.
Nothing in this Memorandum limits the Department of Defense
investigations conducted in support of administrative actions to be taken
by the Department of Defense. However, the Department of Defense investigative
agencies will coordinate all such investigations with the appropriate Department
of Justice prosecutive agency and obtain the concurrence of the Department
of Justice prosecutor or the Department of Justice investigative agency prior
to conducting any administrative investigation during the pendency of the
criminal investigation or prosecution.
In situations where an individual subject to the Uniform Code
of Military Justice is a suspect in any crime for which a Department of Justice
investigative agency has assumed jurisdiction, if a Department of Defense
investigative agency believes that the crime involves special factors relating
to the administration and discipline of the Armed Forces that would justify
its investigation, the Department of Defense investigative agency will advise
the appropriate Department of Justice investigative agency or the Department
of Justice prosecuting authorities of these factors. Investigation of such
a crime may be undertaken by the appropriate Department of Defense investigative
agency with the concurrence of the Department of Justice.
The Department of Defense investigative agencies will provide
to the FBI all information collected during the normal course of agency operations
pertaining to the element generally known as "organized crime "
including both traditional (La Cosa Nostra) and nontraditional organizations
whether or not the matter is considered prosecutable. The FBI should be notified
of any investigation involving any element of organized crime and may assume
jurisdiction of the same.
AGENCIES
the appropriate Department of Defense investigative agency of the initiation
of the Department of Defense related investigations which are predicated
on other than a Department of Defense referral except in those rare instances
where notification might endanger agents or adversely affect the investigation.
The Department of Justice investigative agencies will also notify the Department
of Defense of all allegations of the Department of Defense related crime where
investigation is not initiated by the Department of Justice.
provide timely status reports on all investigations relating to the Department
of Defense unless the circumstances indicate such reporting would be inappropriate.
investigative results at the conclusion of an investigation and advise as
to the nature of judicial action, if any, taken or contemplated.
Department of Defense, the Department of Justice will, upon written request,
provide existing detailed investigative data and documents (less any federal
grand jury material, disclosure of which would be prohibited by Rule 6(e),
Federal Rules of Criminal Procedure), as well as agent testimony for use
in judicial or administrative proceedings, consistent with Department of
Justice and other federal regulations. The ultimate use of the information
shall be subject to the concurrence of the federal prosecutor during the
pendency of any related investigation or prosecution.
all technical services normally available to federal investigative agencies.
of Justice in matters not relating to the Department of Defense as permitted
by law and implementing regulations.
agencies and the Department of Defense investigative agencies may agree to
enter into joint investigative endeavors, including undercover operations,
in appropriate circumstances. However, all such investigations will be subject
to Department of Justice guidelines.
might lead to prosecution in Federal District Court, will conduct the investigation
consistent with any Department of Justice guidelines. The Department of Justice
shall provide copies of all relevant guidelines and their revisions.
When DoD procedures concerning apprehension, search and seizure,
interrogation, eyewitnesses, or identification differ from those of DoJ,
DoD procedures will be used, unless the DoJ prosecutor has directed that
DoJ procedures be used instead. DoD criminal investigators should bring to
the attention of the DoJ prosecutor, as appropriate, situations when use
of DoJ procedures might impede or preclude prosecution under the UCMJ (reference
(d)).
To the extent authorized by law, the Department of Justice
and the Department of Defense will each promptly deliver or make available
to the other suspects, accused individuals and witnesses where authority to
investigate the crimes involved is lodged in the other Department. This MOU
neither expands nor limits the authority of either Department to perform
apprehensions, searches, seizures, or custodial interrogations.
This Memorandum shall not affect the investigative authority
now fixed by the 1979 "Agreement Governing the Conduct of the Defense
Department Counter intelligence Activities in Conjunction with the Federal
Bureau of Investigation" and the 1983 Memorandum of Understanding between
the Department of Defense, the Department of Justice and the FBI concerning
"Use of Federal Military Force in Domestic Terrorist Incidents."
TRANSPORTATION (COAST GUARD) RELATING TO THE INVESTIGATIONS AND PROSECUTION
OF CRIMES OVER WHICH THE TWO DEPARTMENTS HAVE CONCURRENT JURISDICTION.
Whereas, certain crimes committed by Coast Guard personnel subject
to the Uniform Code of Military Justice may be prosecuted by Coast Guard
tribunals under the Code or by civilian authorities in the Federal Courts;
and
Whereas, it is recognized that although the administration
and discipline of the Coast Guard requires that certain types of crimes committed
by its personnel be investigated by that service and prosecuted before Coast
Guard military tribunals other types of crimes committed by such military
personnel should be investigated by civil authorities and prosecuted before
civil tribunals; and
Whereas, it is recognized that it is not
feasible to impose inflexible rules to determine the respective responsibility
of the civilian and Coast Guard military authorities as to each crime over
which they may have concurrent jurisdiction and that informal arrangements
and agreements may be necessary with respect to specific crimes or investigations;
and
Whereas, agreement between the Department of Justice and the
Department of Transportation (Coast Guard) as to the general areas in which
they will investigate and prosecute crimes to which both civil and military
jurisdiction attach will, nevertheless, tend to make the investigation and
prosecution of crimes more expeditious and efficient and give appropriate
effect to the policies of civil government and the requirements of the United
States Coast Guard;
It is hereby agreed and understood between
the Department of Justice and the Department of Transportation (Coast Guard)
as follows:
vessels).
Except as hereinafter indicated, all crimes committed on a military
installation by Coast Guard personnel subject to the Uniform Code of Military
Justice shall be investigated and prosecuted by the Coast Guard if the Coast
Guard makes a determination that there is a reasonable likelihood that only
Coast Guard personnel subject to the Uniform Code of Military justice are
involved in such crimes as principles or accessories, and except in extraordinary
cases, that there is no victim other than persons who are subject to the Uniform
Code of Military Justice or who are bona fide dependents or members of a
household of military or civilian personnel residing on the installation.
Unless such a determination is made, the Coast Guard shall promptly advise
the Federal Bureau of Investigation of any crime committed on a military
installation if such crime is within the investigative authority of the Federal
Bureau of Investigation. The Federal Bureau of Investigation shall investigate
any serious crime of which it has been so advised for the purpose of prosecution
in the civil courts unless the Department of Justice determines that investigation
and prosecution may be conducted more efficiently and expeditiously by the
Coast Guard. Even if the determination provided for in the first sentence
of this paragraph is made by the Coast Guard, it shall promptly advise the
Federal Bureau of Investigation of any crime committed on a military installation
in which there is a victim who is not subject to the Uniform Code of Military
Justice or a bona fide dependent or member of the household of military or
civilian personnel residing on the installation and that the Coast Guard
is investigating the crime because it has been determined to be extraordinary.
The Coast Guard shall promptly advise the Federal Bureau of Investigation
whenever the crime, except in minor offenses, involves fraud against the
government, misappropriation, robbery, or theft of government property of
funds, or is of a similar nature. All such crimes shall be investigated by
the Coast Guard unless it receives prompt advise that the Department of Justice
has determined that the crime should be investigated by the Federal Bureau
of Investigation and that the Federal Bureau of Investigation will undertake
the investigation for the purpose of prosecution in the civil courts.
Except as hereinafter indicated, all crimes committed outside of
military installations, which fall within the investigative jurisdiction
of the Federal Bureau of Investigation and in which there is involved as
a suspect an individual subject to the Uniform Code of Military Justice, shall
be investigated by the Federal Bureau of Investigation for the purpose of
prosecution in civil courts, unless the Department of Justice determines
that investigation and prosecution may be conducted more efficiently and expeditiously
by other authorities. All such crimes which come first to the attention of
Coast Guard authorities shall be referred promptly by them to the Federal
Bureau of Investigation, unless relieved of this requirement by the Federal
Bureau of Investigation as to particular types or classes of crime. However,
whenever Coast Guard military personnel are engaged in scheduled military
activities outside of military installations such as organized maneuvers
or organized movement, the provisions of paragraph 1 above shall apply, unless
persons not subject to the Uniform Code of Military Justice are involved
as principals, accessories or victims.
If, however, there is involved
as a suspect or as an accused in any crime committed outside of a military
installation and falling within the investigative authority of the Federal
Bureau of Investigation, an individual who is subject to the Uniform Code
of Military Justice and if the Coast Guard authorities believe that the crime
involves special factors relating to the administration and discipline of
the Coast Guard which would justify investigation by them for the purpose
of prosecution before a Coast Guard military tribunal, they shall promptly
advise the Federal Bureau of Investigation of the crime and indicate their
views on the matter. Investigation of such a crime may be undertaken by the
Coast Guard military authorities if the Department of Justice agrees.
Exercise of exclusive investigative authority by the Federal Bureau
of Investigation pursuant to this agreement shall not preclude Coast Guard
military authorities from making inquiries for the purpose of administrative
action related to the crime being investigated. The Federal Bureau of Investigation
will make the results of its investigations available to Coast Guard military
authorities for use in connection with such action.
Whenever possible,
decisions with respect to the application in particular cases of the provisions
of this Memorandum of Understanding will be made at the local level, that
is, between the Special Agent in Charge of the local office of the Federal
Bureau of Investigation and the local Coast Guard military commander.
To the extent of the legal authority conferred upon them, the Department
of Justice and Coast Guard military authorities will each deliver to the
other promptly suspects and accused individuals if authority to investigate
the crimes in which such accused individuals and suspects are involved is
lodged in the other by paragraphs 1 and 2 hereof.
Nothing in
this memorandum shall prevent the Coast Guard from prompt arrest and detention
of any person subject to the Uniform Code of Military Justice whenever there
is knowledge or reasonable basis to believe that such a person has committed
an offense in violation of such code and detaining such person until he is
delivered to the Federal Bureau of Investigation if such action is required
pursuant to this memorandum.
/s/ Ramsey Clark/s/ Alan S. Boyd
Ramsey ClarkAlan S. Boyd
Attorney GeneralSecretary of Transportation
Date: 9 October 1967Date: 24 October 1967
[Note 1. _See_ R.C.M.
504(d)]
(Date)
[Pursuant to (para. General
Order No. , Department of the , ) (SECNAV ltr ser
of ) a] (A) (general) (special) court-martial
is convened with the following members (and shall meet at , unless otherwise directed):
(Captain) (Colonel)
(Commander) (Lieutenant Colonel)
(Lieutenant Commander) (Major)
(Lieutenant) (Captain)
(Lieutenant, j.g.) (First Lieutenant)
[Note 2. The name, rank, and position of the convening
authority should be shown. The order may be authenticated by the signature
of the convening authority or a person acting under the direction of the
convening authority.]
[Note 3. The language in brackets or parentheses
in the foregoing samples should be used when appropriate. The Secretary concerned
may prescribe additional requirements for convening orders. See R.C.M.
504(d)(3). Service regulations should be consulted when preparing convening
orders.]
[Note 4. When a new court-martial is convened to
replace one in existence, the following should be added below the names of
the personnel of the court-martial and before the authentication line:]
All cases referred to the (general) (special) court-martial convened
by order no. this (headquarters) (ship) ( ), dated ,
in which the proceedings have not begun, will be brought to trial before
the court-martial hereby convened.
[Note 5. The same heading and authentication used
on convening order should be used on amending orders.]
[Note 6. A succession of amending orders may result
in error. Care should be used in amending convening orders.]
[Note 7. Members may be added in specific cases
or for all cases.]
The following members are detailed to the (general) (special) court-martial
convened by order no. , this (headquarters) (ship)
(), dated
(for the trial of only).
[Note 8. Members may be replaced in specific cases
or for all cases.]
(Captain) (Colonel) , is detailed
as a member of the (general) (special) court-martial convened by order no., this (headquarters) (ship) (),
dated , relieved (for
the case of only).
(Date)
[Pursuant to (para., General Order No. , Department of the ,,) (SECNAV ltr ser of ,)]
(Lieutenant Commander) (Major) is detailed a summary
court-martial (and shall sit at , unless otherwise
directed).
[Note 9. The name, rank, and position of the convening
authority should be shown. The order may be authenticated by the signature
of the convening authority or a person acting under the direction of the
convening authority.]
[Note 10. The summary court-martial convening order
may be a separate page or a notation on the charge sheet. See R.C.M.
504(d)(2) and 1302(c).]
[Note 1. This guide outlines the sequence of events
ordinarily followed in general and special courts-martial, and suggests
ways to conduct various procedures prescribed in the Rules for Courts-Martial.
The guide is not mandatory; it is intended solely as an aid to users of the
Manual for Courts-Martial.]
[Note 2. See R.C.M. 901-911.]
[Note 3. When a military judge has been detailed,
the proceedings outlined in this section will be conducted at an Article
39(a) session. _ See_ R.C.M. 901(e). In special courts-martial
without a military judge, these procedures should be followed in general;
the president of a special court-martial without a military judge should
also carefully examine pertinent Rules for Courts-Martial.]
Sessions called to order
MJ:
This Article 39(a) session is called to order. (Be seated.)
Convening orders and referral of charges
TC:
The court-martial is convened by (general) (special) court-martial
convening order(s) number , (HQ )
(USS) (), (as amended by ) copies of which have been furnished to the military judge,
counsel, and the accused, (and to the reporter for insertion at this point
in the record) (and which will be inserted at this point in the record).
(Copies of any written orders detailing the military judge and counsel will
be inserted at this point in the record.)
[Note 4. When detailed, the reporter records all
proceedings verbatim. See R.C.M. 502(e)(3)(B), 808, and
record of the hour and date of each opening and closing of the session, whether
a recess, adjournment, or otherwise, for insertion in the record. _
See_ R.C.M. 813(b) ad 1103. See also Appendices
13 and 14.]
[Note 5. The military judge should examine the convening
order and any amending orders.]
TC:
The charges have been properly referred to this court-martial for
trial and were served on the accused on .
[Note 6. In time of peace, if less than 5 days have
elapsed since service of the charges in a general court-martial (3 days in
case of a special court-martial), the military judge should inquire whether
the accused objects to proceeding. If the accused objects, the military judge
must grant a continuance. See R.C.M. 901(a).]
TC:
(The following corrections are noted on the convening orders: ).
[Note 7. Only minor changes, such as typographical
errors or changes of grade due to promotion, may be made. Any correction
which affects the identity of the individual concerned must be made by an
amending or correcting order.]
Accounting for parties
[Note 8. See R.C.M. 813.]
TC:
The accused and the following persons detailed to this court-martial
are present: . The members and the following persons
detailed to this court-martial are absent: .
Reporter detailed
[Note 9. When a reporter is detailed, the following
announcement will be made. See R.C.M. 813(a)(8).]
TC:
has been detailed reporter for this court-martial
and (has previously been sworn) (will now be sworn).
[Note 10. See R.C.M. 807(b)(2)
Discussion (D) concerning the oath to be administered the reporter.]
Detail of trial counsel
TC:
((I) (All members of the prosecution) have been detailed to this
court-martial by .)
Qualifications of
TC:
(I am) (All members of the prosecution are) Prosecution qualified
and certified under Article 27(b) and sworn under Article 42(a). (.)
TC:
(I have not) (No member of the prosecution has) acted in any manner
which might tend to disqualify (me) (him) (or) (her) in this court-martial
(.)
Detail of defense counsel
DC:
((I) (All detailed members of the defense) have been detailed to
this court-martial by .)
Qualifications of defense
DC:
(All detailed members of the defense are) (I Counsel am) qualified
and certified under Article 27(b) and sworn under Article 42(a). (.)
DC:
(I have not) (No member of the defense has) acted in any manner
which might tend to disqualify (me) (him) (or) (her) in this court-martial.
(.)
Qualifications of individual counsel when present
IDC:
My qualifications are . I have not acted
in any manner which might tend to disqualify me in this court-martial.
[Note 11. If it appears that any counsel may be
disqualified, the military judge must decide the matter and take appropriate
action. See R.C.M. 901(d)(3).]
Rights to counsel
[Note 12. See R.C.M. 506.]
MJ:
, you have the right to be represented
in this court-martial by (and ), your detailed defense counsel, or you may be represented by military
counsel of your own selection, if the counsel you request is reasonably available.
If you are represented by military counsel of your own selection, you would
lose the right to have (and),
your detailed counsel, continue to help in your defense. However, you may
request that (and ,
or one of them), your detailed counsel, continue to act as associate counsel
with the military counsel you select, and , the
detailing authority, may approve such a request. Do you understand?
ACC:
.
MJ:
In addition, you have the right to be represented by civilian counsel,
at no expense to the United States. Civilian counsel may represent you alone
or along with your military counsel. Do you understand?
[Note 13. If two or more accused in a joint or
common trial are represented by the same counsel, or by civilian counsel
who are associated in the practice of law, the military judge must inquire
into the matter. See R.C.M. 901(d)(4)(D).]
MJ:
Do you have any questions about your rights to counsel?
ACC:
.
MJ:
Who do you want to represent you?
ACC:
.
[Note 14. If appropriate, the court-martial should
be continued to permit the accused to obtain individual military or civilian
counsel.]
MJ:
Counsel for the parties have the necessary qualifications, and have
been sworn (except , who will now be sworn.)
MJ:
I have been detailed to this court-martial by .
[Note 15. See R.C.M. 807(b)(2)
Discussion (C) concerning the oath to be administered to counsel.]
General nature of charges
TC:
The general nature of the charge(s) in this case is . The charge(s) were preferred by , forwarded
with recommendations as to disposition by (, and
investigated by ). (is also
an accuser in this case.)
Challenge of military judge
[Note 16. See R.C.M. 902.]
TC:
Your honor, are you aware of any matter which may be a ground for
challenge against you?
MJ:
(I am aware of none.) (.)
TC:
(The Government has no challenge for cause against the military
judge.) (.)
DC:
(The defense has no challenge for cause against the military judge.)
(.)
Accused's elections on composition of court-martial
[Note 17. See R.C.M. 903. _
See also_ R.C.M. 501(a) and 503(b).]
MJ:
, do you understand that you have the right
to be tried by a court-martial composed of members (including, if you request
in writing, at least one-third enlisted persons) and that, if you are found
guilty of any offense, those members would determine a sentence?
ACC:
.
MJ:
Do you also understand that you may request in writing or orally
here in the court-martial trial before me alone, and that if I approve such
a request, there will be no members and I alone will decide whether you
are guilty and, if I find you guilty, determine a sentence?
ACC:
.
MJ:
Have you discussed these choices with your counsel?
ACC:
.
MJ:
By which type of court-martial do you choose to be tried?
ACC:
.
[Note 18. See R.C.M. 903(a) concerning
whether the accused may defer a decision on composition of court-martial.]
[Note 19. If the accused chooses trial by court-martial
composed of members proceed to arraignment below. Any request for enlisted
members will be marked as an Appellate Exhibit and inserted in the record
of trial. See R.C.M. 1103(b)(2)(D)(iii). In a special court-martial
without a military judge, the members should be sworn, and the challenge
procedure conducted at this point. See Notes 38-17
below.]
Election to be tried by military judge alone
[Note 20. A request for trial by military judge
alone must be written and signed by the accused and should identify the
military judge by name or it may be made orally on the record. A written
request will he marked as an Appellate Exhibit and inserted in the record
of trial. See R.C.M. 1103(b)(2)(D)(iii).]
MJ:
(I have Appellate Exhibit , a request for
trial before me alone.) (I am (Colonel) (Captain) ()
.) . Have you
discussed this request and the rights I just described with your counsel?
ACC:
.
MJ:
If I approve your request for trial by me alone you give up your
right to trial by a court-martial composed of members (including, if you
requested, enlisted members). Do you wish to request trial before me alone?
ACC:
.
MJ:
(Your request is approved. The court-martial is assembled.) (Your
request is disapproved because .)
[Note 21. See R.C.M. 903(c)(2)(B)
concerning approval or disapproval. See R.C.M. 911 concerning
assembly of the court-martial.]
Arraignment
[Note 22. See R.C.M. 904.]
MJ:
The accused will now be arraigned.
TC:
All parties and the military judge have been furnished a copy of
the charges and specifications. Does the accused want them read?
DC:
The accused (waives reading of the charges) (wants the charges
read).
MJ:
(The reading may be omitted.)
TC:
(.)
TC:
The charges are signed by , a person subject
to the code, as accuser; are properly sworn to before a commissioned officer
of the armed forces authorized to administer oaths, and are properly referred
to this court-martial for trial by , the convening
authority.
MJ:
, how do you plead? Before receiving your
pleas, I advise you that any motions to dismiss any charge or to grant other
relief should be made at this time.
[Note 23. See R.C.M. 801(e),
905-907 concerning motions. See R.C.M. 908 if the
Government elects to appeal a ruling adverse to it.]
DC:
The defense has (no) (the following) motion(s). (.)
[Note 24. After any motions are disposed of pleas
are ordinarily entered. See R.C.M. 910.]
DC:
pleads.
[Note 25. If the accused enters any pleas of guilty
proceed with the remainder of section I. If no pleas of guilty are entered,
proceed to section II if trial is before members, or section III if trial
is before military judge alone.]
[Note 26. If trial is before members in a contested
case, the military judge should examine the copy of the charge(s) to be
provided the members, discuss any preliminary instructions with the parties,
and determine whether other matters should be addressed before the Article
39(a) session is ended.]
Guilty plea inquiry
[Note 27. See R.C.M. 910(c), (d),
(e), and (f). If a conditional guilty plea is entered, see R.C.M.
9l0(a)(2).]
Introduction
MJ:
, your plea of guilty will not be accepted
unless you understand its meaning and effect. I am going to discuss your
plea of guilty with you now. If you have any questions, please say so. Do
you understand?
ACC:
.
MJ:
A plea of guilty is the strongest form of proof known to the law.
On your plea alone, without receiving any evidence, this court-martial could
find you guilty of the offense(s) to which you are pleading guilty. Your
plea will not be accepted unless you understand that by pleading guilty you
admit every element of each offense and you are pleading guilty because you
really are guilty. If you do not believe that you are guilty, you should
not plead guilty for any reason. You have the right to plead not guilty
and place the burden upon the prosecution to prove your guilt. Do you understand
that?
ACC:
.
Waiver of rights
MJ:
By your plea of guilty you waive, or in other words, you give up
certain important rights. (You give up these rights only as to the offense(s)
to which you have pleaded guilty. You keep them as to the offense(s) to which
you have pleaded not guilty). The rights you give up are: First, the right
against self-incrimination, that is the right to say nothing at all about
(this) (these) offense(s). Second, the right to a trial of the facts by the
court-martial, that is, the right to have this court-martial decide whether
or not you are guilty based on evidence presented by the prosecution and,
if you chose to do so, by the defense. Third, the right to be confronted
by the witnesses against you, that is to see and hear the witnesses against
you here in the court-martial and to have them cross-examined, and to call
witnesses in your behalf. Do you understand these rights?
ACC:
.
MJ:
If you plead guilty, there will not be a trial of any kind as to
the offense(s) to which you are pleading guilty, so by pleading guilty you
give up the rights I have just described. Do you understand that?
ACC:
.
Maximum penalty
MJ:
Defense counsel, what advice have you given
as to the maximum punishment for the offense(s) to which the accused pleaded
guilty?
DC:
.
MJ:
Trial counsel, do you agree with that?
TC:
.
[Note 28. If there is a question as to the maximum
punishment, the military judge must resolve it. If the maximum punishment
may be subject to further dispute, the military judge should advise the accused
of the alternative possibilities and determine whether this affects the accused's
decision to plead guilty.]
MJ:
, by your plea of guilty this court-martial
could sentence you to the maximum authorized punishment, which is. Do you understand that?
ACC:
.
MJ:
Do you feel you have had enough time to discuss your case with your
counsel, ?
ACC:
.
MJ:
, do you feel that you have had enough
time to discuss the case with your client?
DC:
.
MJ:
, are you satisfied with (and ), your defense counsel, and do you
believe (his) (her) (their) advice has been in your best interest?
ACC:
.
MJ:
Are you pleading guilty voluntarily?
ACC:
.
MJ:
Has anyone tried to force you to plead guilty?
ACC:
.
Factual basis for plea
[Note 29. The accused will be placed under oath
at this point. See R.C.M. 910(e). The military judge may
inquire whether there is a stipulation in connection with the plea, and may
inquire into the stipulation at this point. See R.C.M.
811.]
MJ:
In a moment, you will be placed under oath and we will discuss the
facts of your case. If what you say is not true, your statements may be used
against you in a prosecution for perjury or false statement. Do you understand?
ACC:
.
TC:
Do you (swear) (affirm) that the statements you are about to make
shall be the truth, the whole truth, and nothing but the truth (so help you
God)?
ACC:
.
MJ:
I am going to explain the elements of the offense(s) to which you
have entered pleas of guilty. By "elements" I mean the facts
which the Government would have to prove by evidence beyond a reasonable
doubt before you could be found guilty if you pleaded not guilty. When I
state each of these elements ask yourself if it is true, and whether you
want to admit that its true. Then be ready to talk about these facts with
me.
MJ:
Please look at your copy of the charges and specifications. You
have pleaded guilty to Charge , Specification
, a violation of Article
of the Uniform Code of Military Justice. The elements of that offense are
.
[Note 30. See subparagraph b of
the appropriate paragraph in Part IV. The description of the elements should
be tailored to the allegations in the specification. Legal terms should be
explained.]
MJ:
Do you understand those elements?
ACC:
.
MJ:
Do the elements correctly describe what you did?
ACC:
.
Accused's description of
offense(s)
[Note 3l. The military judge should elicit from
the accused facts supporting the guilty plea by questioning the accused about
the offense(s). The questioning should develop the accused's description
of the offense(s) and establish the existence of each element of the offense(s).
The military judge should be alert to discrepancies in the accused's description
or between the accused's description and any stipulation. If the accused's
discussion or other information discloses a possible defense, the military
judge must inquire into the matter, and may not accept the plea if a possible
defense exists. The military judge should explain to the accused the elements
of a defense when the accused's description raises the possibility of one.
The foregoing inquiry should be repeated as to each offense to which the
accused has pleaded guilty.]
Identification of accused
MJ:
Do you admit that you are, the accused
in this case?
ACC:
.
Jurisdiction
MJ:
On (date of earliest offense), were you
a member of the United States (Army) (Navy) (Air Force) (Marine Corps) (Coast
Guard) on active duty, and have you remained on active duty since then?
ACC:
.
[Note 32. The military judge should determine whether
jurisdiction might be affected by a post-offense reenlistment.]
Pretrial agreement
MJ:
Is there a pretrial agreement in this case?
TC or DC:
.
[Note 33. If the answer is yes proceed to note
35; if the answer is no, proceed as follows.]
MJ:
are you pleading guilty because of any
promise by the Government that you will receive a sentence reduction or other
benefit from the Government if you plead guilty?
ACC:
.
[Note 34. If the answer is no, proceed to acceptance
of the plea. If the answer is yes, the military judge should determine from
the accused and counsel whether any agreement exists. If so, the plea agreement
inquiry should continue. If not, then the military judge should clarify any
misunderstanding the accused may have, and ascertain whether the accused
still wants to plead guilty. Once any issue is resolved, if the accused maintains
the plea of guilty, proceed to acceptance of the plea.]
[Note 35. If there is a pretrial agreement, the
military judge must: (l) ensure that the entire agreement is presented, provided
that in trial by military judge alone the military judge ordinarily will
not examine any sentence limitation at this point; (2) ensure that the agreement
complies with R.C.M. 705; and (3) inquire to ensure that the accused understands
the agreement and that the parties agree to it. See R.C.M.
910(f). If the agreement contains any ambiguous or unclear terms, the military
judge should obtain clarification from the parties.]
[Note 36. The agreement should be marked as an
Appellate Exhibit. If the agreement contains a sentence limitation and trial
is before military judge alone, the sentence limitation should be marked
as a separate Appellate Exhibit, if possible.]
[Note 37. The language below is generally appropriate
when trial is before military judge alone. It should be modified when trial
is before members.]
MJ:
, I have here Appellate Exhibit , which is part of a pretrial agreement between you and , the convening authority. Is this your signature which appears
(on the bottom of page ), ()
and did you read this part of the agreement?
ACC:
.
MJ:
Did you also read and sign Appellate Exhibit ,
which is the second part of the agreement?
ACC:
.
MJ:
Do you believe that you fully understand the agreement?
ACC:
.
MJ:
I don't know, and I don't want to know at this time the sentence
limitation you have agreed to. However, I want you to read that part of the
agreement over to yourself once again.
MJ:
[After accused has done so.] Without saying what
it is, do you understand the maximum punishment the convening authority may
approve?
ACC:
.
MJ:
In a pretrial agreement, you agree to enter a plea of guilty to
(some of) the charge(s) and specification(s), and, in return, the convening
authority agrees to (approve no sentence greater than that listed in Appellate
Exhibit , which you have just read) ( ). [In addition, (you have agreed to testify against) () (the convening authority has
agreed to withdraw Charge and its specification)
(). Do you understand that?
ACC:
.
MJ:
If the sentence adjudged by this court-martial is greater than the
one provided in the agreement, the convening authority would have to reduce
the sentence to one no more severe than the one in your agreement. On the
other hand, if the sentence adjudged by this court-martial is less than the
one in your agreement, the convening authority cannot increase the sentence
adjudged. Do you understand that?
ACC:
.
[Note 38. The military judge should discuss the
agreement with the accused, and explain any terms which the accused may
not understand. If the accused does not understand a term, or if the parties
disagree as to a term, the agreement should not be accepted unless the matter
is clarified to the satisfaction of the parties. If there are any illegal
terms, the agreement must be modified in accordance with R.C.M. 705. The
trial counsel should be granted a recess on request to secure the assent
of the convening authority to any material modification in the agreement.]
MJ:
is this agreement, Appellate Exhibit(s)
(and ) the entire agreement between
you and the convening authority? In other words, is it correct that there
are no other agreements or promises in this case?
ACC:
.
MJ:
Do counsel agree?
TC:
.
DC:
.
MJ:
, do you understand your pretrial agreement?
ACC:
.
MJ:
Do counsel disagree with my explanation or interpretation of the
agreement in any respect?
TC:
.
DC:
.
MJ:
(To DC), did the offer to make a pretrial agreement originate with
the defense?
DC:
.
MJ:
are you entering this agreement freely
and voluntarily?
AC:
.
MJ:
Has anyone tried to force you to enter this agreement?
ACC:
.
MJ:
Have you fully discussed this agreement with your counsel, and are
you satisfied that (his) (her) advice is in your best interest?
ACC:
.
MJ:
, although you believe you are guilty,
you have a legal and a moral right to plead not guilty and to require the
Government to prove its case against you, if it can, by legal and competent
evidence beyond a reasonable doubt. If you were to plead not guilty, then
you would be presumed under the law to be not guilty, and only by introducing
evidence and proving your guilt beyond a reasonable doubt can the Government
overcome that presumption. Do you understand?
ACC:
.
MJ:
Do you have any questions about your plea of guilty, your pretrial
agreement, or anything we have discussed?
ACC:
.
Acceptance of guilty plea
MJ:
Do you still want to plead guilty?
ACC:
.
MJ:
I find that the accused has knowingly, intelligently, and consciously
waived (his) (her) rights against self-incrimination, to a trial of the facts
by a court-martial, and to be confronted by the witnesses against (him)
(her); that the accused is, in fact guilty; and (his) (her) plea of guilty
is accepted.
MJ:
, you may request to withdraw your plea
of guilty any time before the sentence is announced in your case and if you
have a good reason for your request, I will grant it. Do you understand?
ACC:
.
Announcement of findings based on a guilty plea
[Note 39. Findings of guilty may, and ordinarily
should, be entered at this point except when: (l) not permitted
by regulations of the Secretary concerned; or (2) the plea is to a lesser
included offense and the prosecution intends to proceed to trial on the offense
as charged. See R.C.M. 9l0(g)(l) and (2). _See also
_ R.C.M. 9l0(g)(3) in special courts-martial without a military judge.
In trials before military judge alone, when some offenses are to be contested,
the military judge may elect to defer entry of any findings until the end
of trial on the merits.]
[Note 40. See R.C.M. 922 and Appendix
10 concerning forms of findings.]
MJ:
, in accordance with your plea(s) of guilty,
this court-martial finds you (of all charges and specifications) (of Specification
of Charge and Charge ): Guilty.
[Note 41. If trial is before members, and no offenses
remain to be contested on the merits, this may be an appropriate point for
the military judge to inform the accused of the rights to allocution under
R.C.M. 100l(a)(3). See Note 88 below. In addition, other
issues relating to the information or evidence to be introduced on sentencing
should ordinarily be resolved at this point. If other offenses remain to
be contested, the military judge should consider, and solicit the views of
the parties, whether to inform the members only of the offenses to which
the accused pleaded not guilty. The copy of the charges presented to the
members should reflect this decision. See also Note 26.]
[Note 42. The following procedure is suggested
for a trial with members after completion of the Article 39(a) session.
Before calling the court-martial to order, the military judge
should examine the convening order and any amending orders and ensure that
all members required to be present are present. Witnesses should be excluded
from the courtroom except when they testify.
When the court-martial
is ready to proceed the military judge should direct the bailiff, if any,
or the trial counsel to call the members. Whenever the members enter the
courtroom, all persons present except the military judge and reporter should
rise.
The members are seated alternatively to the right and left
of the president according to rank.]
MJ:
The court-martial will come to order. You may be seated.
TC:
This court-martial is convened by (general) (special) court-martial
convening order number (HQ)
(USS ) (), as amended
by ), a copy of which has been furnished to each member.
TC:
The accused and the following persons named in the convening orders
are present:.
TC:
The following persons named in the convening orders are absent:
.
[Note 43. Persons who have been relieved (viced)
by written orders need not he mentioned. The reason for any other absences
should be stated.]
TC:
The prosecution is ready to proceed with the trial in the case of
United States v. (who is present).
Oath of members
MJ:
The members will now be sworn.
TC:
All persons please rise.
"Do you [name(s) of member(s)] (swear) (affirm)
that you will answer truthfully the questions concerning whether you should
serve as a member of this court-martial; that you will faithfully and impartially
try, according to the evidence, your conscience, and the laws applicable
to trials by court-martial, the case of the accused now before this court;
(12/19/2012Paratext split per proponent request for page placement)
and that you will not disclose or discover the vote or opinion of any particular
member of the court-martial (upon a challenge or) upon the findings or sentence
unless required to do so in due course of law, (so help you God)?"
Each member:
I do.
Assembly/preliminary
instructions
MJ:
Be seated please. The court-martial is assembled.
[Note 44. See R.C.M. 911 concerning
assembly.]
[Note 45. At this point, the military judge may
give the members preliminary instructions. These may include instructions
on the general nature of the member's duties (see R.C.M.
502(a)(2) and Discussion, 922, l006), the duties of the military judge (_
see_ R.C.M. 801, 920, 1005; Mil. R. Evid. 103). and the duties of
counsel (see R.C.M. 502(d)(5) and (6)); on voir dire and
possible grounds for challenge (see R.C.M. 912); on the
procedures for questioning witnesses (see Mil. R. Evid.
611, 614); on taking notes; and such other matters as may be appropriate.
The military judge may elect to defer giving instructions on some of these
matters until after voir dire, or until another appropriate point in the
proceedings.]
General nature of charges
[Note 46. Trial counsel should distribute copies
of the charges and specifications to the members.]
TC:
The general nature of the charge(s) in this case (is) (are) . The charge(s) were preferred by ;
forwarded with recommendations as to disposition by;
(and investigated by.)
Challenges
TC:
The records of this case disclose (no grounds for challenge) (grounds
for challenge of , on the following grounds
.)
TC:
If any member is aware of any matter which may be a ground for
challenge by any party, the member should so state.
[Note 47. In case of a negative response, trial
counsel should announce "Apparently not."]
[Note 48. The military judge and, if permitted
by the military judge, counsel may examine the members on voir dire. _
See_ R.C.M. 912(d) and Discussion. The parties may present evidence
relating to challenges for cause. See R.C.M. 912(e). Upon
completion of voir dire and taking evidence, if any, the parties will be
called upon to enter challenges for cause. Ordinarily trial counsel enters
challenges for cause before defense counsel. After any challenges for cause,
the parties may be called upon to enter peremptory challenges. Ordinarily
trial counsel enters a peremptory challenge before the defense. The parties
must be permitted to enter challenges outside the presence of members. _
See_ R.C.M. 912(f) and (g). In special courts-martial without a
military judge, see R.C.M. 912(h).]
[Note 49. If any members are successfully challenged,
they should be excused in open session in the presence of the parties. The
record should indicate that they withdrew from the courtroom. The members
who remain after challenges should be reseated according to rank, as necessary.]
[Note 50. The military judge should ensure that
a quorum remains, and, if the court-martial is composed with enlisted persons,
that at least one-third of the remaining members are enlisted persons. _
See_ R.C.M. 912(g)(2) Discussion.]
[Note 51. If the members have not yet been informed
of the plea(s), this should now be done.]
MJ:
Members of the court-martial, at an earlier session the accused
was arraigned and entered the following pleas: .
[Note 52. In a special court-martial without a
military judge, the accused should now be arraigned. See Notes
22-39.]
[Note 53. If the military judge entered findings
based on pleas of guilty and no offenses remain to be contested, the military
judge should give the following instruction and proceed to SECTION IV, below.]
MJ:
I accepted the accused's pleas of guilty and entered findings of
guilty as to (the) (all) Charge(s) () and Specification(s)
() and ). Therefore,
we will now proceed to determine a sentence in the case.
[Note 54. If the accused pleaded guilty to some
offenses, but others remain to be contested, and the members have been informed
of the offenses to which the accused pleaded guilty, the military judge should
instruct as follows.]
MJ:
Members, you will not be required to reach findings regarding Charge
() and Specification(s) ()
(and ) (and ). Findings
will be required, however, as to Charge () and Specification(s)
() (and ) (and ), to which the accused has pleaded not guilty. You may
not consider the fact that the accused pleaded guilty to (one) (some) offense(s)
in any way in deciding whether the accused is guilty of the offense(s) to
which (he) (she) has pleaded not guilty.
[Note 55. If the accused has pleaded guilty to
a lesser included offense and the prosecution intends to prove the greater
offense, the military judge should instruct as follows.]
MJ:
The accused's plea of guilty to the lesser included offense of admits some of the elements of the offense charged in
(the) Specification () of (the) Charge (). These elements are, therefore, established by the accused's
plea without need of further proof. However, the accused's plea of guilty
to this lesser included offense provides no basis for a finding of guilty
as charged, because there still remains in issue the elements of . No inference of guilt of such remaining elements may be drawn
from the accused's plea. Before the accused may be found guilty of the offense
charged, the prosecution must prove the remaining element(s) beyond a reasonable
doubt.
[Note 56. The military judge may give such additional
preliminary instructions as may be appropriate at this point.]
[Note 57. See R.C.M. 913.]
MJ:
Will the prosecution make an opening statement?
TC:
(No) (Yes..)
MJ:
Will the defense make an opening statement?
DC:
(No) (The defense will make its statement after the prosecution
has rested.) (Yes. .)
TC:
The prosecution calls as its first witness .
Oath of witness
[Note 58. See R.C.M. 807.]
TC:
Do you (swear) (affirm) that the evidence you give in the case
now in hearing shall be the truth, the whole truth, and nothing but the truth,
(so help you God)?
WIT:
.
Preliminary questions
TC:
(Are you (_state name, grade, organization, station, and
armed force) (state name and address, if civilian_)?) (Please state
your name (grade, organization, station, and armed force) (and address).
WIT:
.
[Note 59. The address of witnesses should be omitted
in appropriate cases, as where it might endanger the witness.]
[Note 60. Except when an identification is inappropriate
(e.g., when the witness is a laboratory technician) or where a foundation
must be laid, Trial Counsel ordinarily should ask the witness to identify
the accused.]
TC:
Do you know the accused?
WIT:
.
[Note 61. If the witness answers affirmatively:]
TC:
Please point to the accused and state (his) (her) name.
WIT:
.
TC:
Let the record show that the witness pointed to the accused when
stating (his) (her) name.
Testimony
[Note 62. Trial counsel should now conduct direct
examination of the witness. See Mil. R. Evid. 611.]
TC:
No further questions.
MJ:
, you may cross-examine.
[Note 63. Defense counsel may cross-examine the
witness.]
DC:
No (further) questions.
[Note 64. The parties should be permitted to conduct
such redirect and recross-examination as may reasonably be necessary. _
See_ Mil. R. Evid. 611. After the parties have completed their questioning,
the military judge and members may ask additional questions. _See
_ Mil. R. Evid. 614. The members should be instructed on the procedures
for questioning. Each member's questions will be collected by the bailiff,
if any, or trial counsel, marked as an Appellate Exhibit, examined by counsel
for each side, and given to the military judge. If there are any objections,
they should be raised at an Article 39(a) session or at a side-bar conference.]
[Note 65. After questioning of a witness is completed,
the military judge should determine whether the witness will be excused
temporarily or permanently. The military judge should advise the witness
as follows.]
MJ:
thank you. You are (temporarily) excused.
(Please wait (in the waiting room) ()). (You are
free to go.) As long as this trial continues, do not discuss your testimony
or knowledge of the case with anyone except counsel. If anyone else tries
to talk to you about the case, stop them and report the matter to one of
the counsel.
[Note 66. The witness will withdraw from the courtroom.
See Mil. R. Evid. 615.]
TC:
The prosecution calls as its next witness .
[Note 67. Trial counsel continues to present the
prosecution case. If exhibits were admitted at an Article 39(a) session,
trial counsel may, with the permission of the military judge, read or present
the evidence to the court-martial.]
Recess, adjournment, or Article 39(a) session
[Note 68. In the event of a recess, continuance,
adjournment, or Article 39(a) session the military judge should announce
when the court-martial will reconvene, and should instruct or remind the
members not to discuss the case with anyone, not to consult legal references,
and to avoid exposure to matters relating to the case.]
Reopening
[Note 69. When the court-martial is reopened, the
following announcement is appropriate.]
MJ:
The court-martial will come to order.
TC:
The members, the parties, and the military judge are all present.
Prosecution rests
TC:
The prosecution rests.
[Note 70. A motion for a finding of not guilty
may be raised at this point. See R.C.M. 917. Any such motion
should be made outside the presence of the members. If a motion is made in
the presence of members, and is denied, the military judge should instruct
the members that the military judge applies a different standard in ruling
on the motion than they must apply in reaching their findings, and that the
denial must have no effect on their deliberations and findings.]
Presentation of evidence by defense
[Note 71. Defense counsel may make an opening statement
if one was not made previously.]
DC:
The defense calls as its first witness .
[Note 72. Trial counsel administers the oath to
each witness. Defense counsel conducts direct examination, and trial counsel
cross-examination of each witness. Redirect and recross-examination may be
conducted as appropriate. The military judge and members may question each
witness. _ See note_ 64.]
[Note 73. Defense counsel continues to present
the defense case. If exhibits were admitted at an Article 39(a) session,
defense counsel may, with the permission of the military judge, read or present
the evidence to the court-martial.]
DC:
The defense rests.
Rebuttal and surrebuttal
[Note 74. The parties may present evidence in rebuttal
and surrebuttal. See R.C.M. 9l3(c)(l). After the parties
complete their presentations, additional evidence may be presented when the
military judge so directs. See R.C.M. 801(c), 9l3(c)(l)(F).]
[Note 75. When a witness is recalled, the following
is appropriate.]
TC:
Are you the same who testified earlier
in this court-martial?
WIT:
I am.
TC:
You are reminded that you are still under oath.
[Note 76. If trial is by military judge alone,
counsel should be permitted to make closing arguments. See R.C.M.
Out of court hearing on findings instructions
[Note 77. Ordinarily the military judge will conducts
Article 39(a) session to discuss findings instructions and examine the findings
worksheet. See R.C.M. 920,921(d). If such instructions are
discussed at a conference, see R.C.M. 802.]
Closing arguments
[Note 78. See R.C.M. 919.]
TC:
.
DC:
.
TC:
.
Instructions
[Note 79. See R.C.M. 920.]
MJ:
.
MJ:
Does any member have any questions concerning these instructions?
MEMBERS:
MJ:
Do counsel have any objections to these instructions not previously
raised?
TC:
.
DC:
.
[Note 80. See R.C.M. 920(f).]
[Note 81. Any exhibits which the members are to
consider should be given to the president before the court-martial closes.]
Closing
MJ:
The court-martial is closed.
[Note 82. While the members are deliberating, the
military judge may take up certain matters which may arise if the accused
is found guilty of any offense. The admissibility of evidence during sentencing
proceedings and advice to the accused about allocution rights may be considered
at an Article 39(a) session at this point. See R.C.M. 1001. _
See_ Note 88 below concerning allocution advice.]
After findings reached
MJ:
The court-martial will come to order.
TC:
All parties and members and the military judge are present.
MJ:
(To president) have the members
reached findings?
PRES:
MJ:
Are the findings on Appellate Exhibit ?
PRES:
Yes.
MJ:
Would (the bailiff) (trial counsel), without examining it please
bring me Appellate Exhibit ?
MJ:
I have examined Appellate Exhibit . It
appears to be in proper form. Please return it to the president.
[Note 83. See R.C.M. 921(d) concerning
a findings worksheet, and the procedure to be followed if any problems are
indicated. See R.C.M. 924 if reconsideration of a finding
may be necessary.]
Announcement of findings
MJ:
, would you and your counsel stand up please
(and approach the president).
MJ:
, announce the findings please.
PRES:
, this court-martial finds you .
MJ:
Please be seated.
[Note 84. If the accused is found not guilty of
all charges and specifications, the court-martial is ordinarily adjourned
at this point.]
[Note 85. If the accused pleaded guilty to some
specifications and the members have not yet been informed of these, the
members should now be given copies of these specifications and be informed
of the accused's plea to them. See text following Note
51.]
Data from charge sheet
[Note 86. See R.C.M. 1001(b)(1).]
MJ:
The court-martial will now hear the data concerning the accused
shown on the charge sheet.
TC:
.
Matters presented by
prosecution
MJ:
Does the prosecution have other matters to present?
[Note 87. The prosecution may present certain matters
from the accused's personnel records, evidence of previous convictions,
evidence in aggravation, and evidence of rehabilitative potential. _
See_ R.C.M. 1001(b)(2) through (5).]
TC:
The prosecution has nothing further.
Matters presented by defense
[Note 88. If the accused has not previously been
advised in accordance with R.C.M. 1001(a)(3), such advice should now be
given. In trial before members, this advice should be given at an Article
39(a) session.]
MJ:
, you have the right to present matters
in extenuation and mitigation, that is, matters about the offense(s) or yourself
which you want the court-martial to consider in deciding a sentence. Included
in your right to present evidence are the rights you have to testify under
oath, to make an unsworn statement, or to remain silent. If you testify,
you may be cross-examined by the trial counsel and questioned by me (and
the members). If you decide to make an unsworn statement you may not be
cross-examined by trial counsel or questioned by me (or the members). You
may make an unsworn statement orally or in writing, personally, or through
your counsel, or you may use a combination of these ways. If you decide to
exercise your right to remain silent, that cannot be held against you in
any way. Do you understand your rights?
ACC:
.
MJ:
Which of these rights do you want to exercise?
ACC:
.
[Note 89. The defense may present matters in rebuttal
and extenuation and mitigation. See R.C.M. 1001(c).]
DC:
The defense has nothing further.
Rebuttal
[Note 90. The parties may present additional matters
in rebuttal, as appropriate.
See R.C.M. 1001(a)(l)(C).]
Out of court hearing on
sentencing instructions
[Note 91. If trial is by military judge alone,
counsel should be permitted to make arguments on sentencing. After arguments
proceed to announcement of the sentence.]
[Note 92. Ordinarily the military judge will conduct
an Article 39(a) session to discuss sentencing instructions and examine
the sentence worksheet. _ See_ R.C.M. 1005. If such instructions
are discussed at a conference, see R.C.M. 802.]
Closing arguments
[Note 93. See R.C.M. 1001(g).]
TC:
.
DC:
.
Instructions
[Note 94. See R.C.M. 1005.]
MJ:
.
MJ:
Does any member have any questions concerning these instructions?
MEMBERS:
.
MJ:
Do counsel have any objections concerning these instructions not
previously raised?
TC:
.
DC:
.
[Note 95. See R.C.M. 1005(f).]
[Note 96. Any exhibits which the members are to
consider should be given to the president before the court-martial closes.]
Closing
MJ:
The court-martial is closed.
After sentence reached
MJ:
The court-martial will come to order.
TC:
All parties and members and the military judge are present.
MJ:
(To president), have the members reached
a sentence?
PRES:
.
MJ:
Is the sentence on Appellate Exhibit ?
PRES:
Yes.
MJ:
Would (the bailiff) (trial counsel), without examining it, please
bring me Appellate Exhibit.
MJ:
I have examined Appellate Exhibit . It appears
to be in proper form. Please return it to the president.
[Note 97. See R.C.M. 1006(e) concerning
a sentence worksheet, and the procedure to be followed if any problems are
indicated. See R.C.M. 1009 if reconsideration of the sentence
may be necessary.]
Announcement of sentence
MJ:
, would you and your counsel stand up please
(and approach the president).
MJ:
, would you announce the sentence please.
PRES:
, this court-martial sentences you to:
.
MJ:
Please be seated.
[Note 98. In trial before members, ordinarily the
members should be excused at this point. If no other matters remain to be
considered, the court-martial should be adjourned. If there are additional
matters to be considered (e.g., punishment limitation in a pretrial agreement
in a trial by military judge alone, see R.C.M. 9l0(f)(3)
or, if the accused was represented by more than one counsel, which counsel
will prepare any response to the post-trial review) these matters should
be addressed before the court-martial is adjourned.]
Advice of post-trial and
appellate rights
[Note 99. The military judge must advise the accused
of the accused's post-trial and appellate rights. See R.C.M.
1010.]
MJ:
, I will explain to you your post-trial
and appellate rights.
MJ:
After the record of trial is prepared in your case, the convening authority will act on your case. The convening authority
can approve the sentence (adjudged) (provided in your pretrial agreement),
or (he) (she) can approve a lesser sentence or disapprove the sentence entirely.
The convening authority cannot increase the sentence. The convening authority
can also disapprove (some or all of) the findings of guilty. The convening
authority is not required to review the case for legal errors, but may take
action to correct legal errors. Do you understand?
ACC:
.
Advice in GCMs and SPCMs in which BCD or confinement for
one year is adjudged
[Note 100. In cases subject to review by a Court
of Criminal Appeals, the following advice should be given. In other cases
proceed to Note 101 or 102 as appropriate.]
MJ:
, I will now advise you of your post-trial
and appellate rights. Remember that in exercising these rights you have the
right to the advice and assistance of military counsel provided free of charge
or civilian counsel provided at your own expense.
You have the right
to submit any matters you wish the convening authority to consider in deciding
whether to approve all, part, or any of the findings and sentence in your
case. Such matters must be submitted within 10 days after you or your counsel
receive a copy of the record of trial and the recommendation of the (staff
judge advocate) (legal officer).
(12/19/2012Paratext split per proponent request for page placement)
If the convening authority approves
the discharge or confinement at hard labor for a year or more, your case
will be reviewed by a Court of Criminal Appeals.
After the Court of
Criminal Appeals completes its review, you may request that your case be reviewed
by the Court of Appeals for the Armed Forces; if your case is reviewed by
that Court, you may request review by the United States Supreme Court.
You
also have the right to give up review by the Court of Criminal Appeals, or
to withdraw your case from appellate review at any time before such review
is completed.
If you give up your right to review by the Court of Criminal
Appeals or later withdraw your case from appellate review.
That decision is final and you cannot change your mind
later.
Your case will be reviewed by a military lawyer for legal
error. It will also be sent to the (general court-martial*) convening authority
for final action.
(*Use only for special court-martial.)
Within 2 years after final action is taken on your case,
you may request The Judge Advocate General to take corrective action.
Do you have any questions?
ACC:
.
MJ:
The court-martial is adjourned.
GCM subject to review under Article 69
[Note 101. In general courts-martial subject to
review under Article 69, the following advice should be given. In other
cases, proceed to Note 102.]
MJ:
, I will now advise you of your post-trial
and appellate rights. Remember that in exercising these rights you have the
right to the advice and assistance of military counsel provided free of
charge or civilian counsel provided at your own expense.
You have the
right to submit any matters you wish the convening authority to consider
in deciding whether to approve all, part, or any of the findings and sentence
in your case. Such matters must be submitted within 10 days after you or
your counsel receive a copy of the record of trial and the recommendation
of the (staff judge advocate) (legal officer). If the convening authority
approves any part of your sentence, your case will be examined in the Office
of The Judge Advocate General for any legal errors and to determine whether
your sentence is fair. The Judge Advocate General may take corrective action,
if appropriate. You also have the right to give up examination by The Judge
Advocate General or to withdraw your case from such examination at any time
before such examination is completed. If you give up your right to examination
by The Judge Advocate General or later withdraw your case from such examination:
That decision is final and you cannot change your mind
later.
Your case will be reviewed by a military lawyer for legal
error. It will also be sent to the convening authority for final action.
Within 2 years after action is taken on your case, you may
request The Judge Advocate General to take corrective action.
Do you have any questions?
ACC:
.
MJ:
The court-martial is adjourned.
SPCM not involving a BCD or confinement for one year
[Note 102. In special courts-martial not involving
BCD or confinement for one year, the following advice should be given.]
MJ:
, I will now advise you of your post-trial
and appellate rights. Remember that in exercising these rights, you have
the right to the advice and assistance of military counsel provided free
of charge or civilian counsel provided at your own expense. You have the
right to submit any matters you wish the convening authority to consider
in deciding whether to approve all, part, or any of the findings and sentence
in your case. Such matters must be submitted within l0 days after you or
your counsel receive a copy of the record of trial. If the convening authority
approves any part of the findings or sentence, your case will be reviewed
by a military lawyer for legal error. It may be sent to the general court-martial
convening authority for final action on any recommendation by the lawyer
for corrective action. Within 2 years after final action is taken on your
case, you may request The Judge Advocate General to take corrective action.
Do you have any questions?
ACC:
.
MJ:
The court-martial is adjourned.
[General Note to SCM: It is not the purpose of this guide to
answer all questions which may arise during a trial. When this guide, chapter
13 of the Rules for Courts-Martial, and other legal materials available fail
to provide sufficient information concerning law or procedure, the summary
court-martial should seek advice on these matters from a judge advocate. _
See_ R.C.M. 1301(b). If the accused has obtained, or wishes to obtain,
defense counsel, see R.C.M. 1301(e). The SCM should examine
the format for record of trial at appendix 15. It may be useful as a checklist
during the proceedings to ensure proper preparation after trial. The SCM
should become familiar with this guide before using it. Instructions for
the SCM are contained in brackets, and should not be read aloud. Language
in parentheses reflects optional or alternative language. The SCM should
read the appropriate language aloud.]
Preliminary Proceeding
Identity of SCM
SCM:
I am . I have been detailed to conduct a
summary court-martial (by Summary Court-Martial Convening Order (Number), Headquarters, , dated [
_see_convening order]).
Referral of charges to trial
Charges against you have been referred to me for trial by summary
court-martial by ([_name and title of convening authority
_]) on ([date of referral])
[see block IV on page 2 of charge sheet].
[Note 1. Hand copy of charge sheet to the accused.]
Providing the accused with charge sheet
I suggest that you keep this copy of the charge sheet and refer
to it during the trial. The charges are signed by [ _see
_ first name at top of page 2 of charge sheet], a person
subject to the Uniform Code of Military Justice, as accuser, and are properly
sworn to before a commissioned officer of the armed forces authorized to
administer oaths. ( ordered the charges to be preferred.)
The charges allege, in general, violation of Article,
in that you (and Article,
in that you ). I am now going to tell you about certain
rights you have in this trial. You should carefully consider each explanation
because you will soon have to decide whether to object to trial by summary
court-martial. Until I have completed my explanation, do not say anything
except to answer the specific questions which I ask you. Do you understand
that?
ACC:
.
Duties of SCM
SCM:
As summary court-martial it is my duty to obtain and examine all
the evidence concerning any offense(s) to which you plead not guilty, and
to thoroughly and impartially inquire into both sides of the matter. I will
call witnesses for the prosecution and question them, and I will help you
in cross-examining those witnesses. I will help you obtain evidence and present
the defense. This means that one of my duties is to help you present your
side of the case. You may also represent yourself, and if you do, it is my
duty to help you. You are presumed to be innocent until your guilt has been
proved by legal and competent evidence beyond a reasonable doubt. If you
are found guilty of an offense, it is also my duty to consider matters which
might affect the sentence, and then to adjudge an appropriate sentence. Do
you understand that?
ACC:
.
Right to object to SCM
SCM:
You have the absolute right to object to trial by summary court-martial.
If you object the appropriate authority will decide how to dispose of the
case. The charges may be referred to a special or general court-martial,
or they may be dismissed, or the offenses charged may be disposed of by
(nonjudicial punishment [if not previously offered and refused]
or) administrative measures.[ See R.C.M. 306.]
Do you understand that?
ACC:
.
Right to inspect allied papers and personnel records.
SCM:
You may inspect the allied papers and personnel records [Hand
those documents which are available to the accused for examination in your
presence.] (You may also inspect [_identify personnel
records or other documents which are not present_] which
are located at . You may have time to examine these
if you wish.)
Witnesses/other evidence for the government
SCM:
The following witnesses will probably appear and testify against
you: . The following documents and physical evidence
will probably be introduced: .
Right to cross-examine
After these witnesses have testified in response to my questions,
you may cross-examine them. If you prefer, I will do this for you after you
inform me of the matters about which you want the witness to be questioned.
Do you understand that?
ACC:
.
Right to present evidence
SCM:
You also have the right to call witnesses and present other evidence.
This evidence may concern any or all of the charges. (I have arranged to
have the following witnesses for you present at the trial.) I will arrange
for the attendance of other witnesses and the production of other evidence
requested by you. I will help you in any way possible. Do you understand
that?
ACC:
.
Evidence to be considered
SCM:
In deciding this case, I will consider only evidence introduced
during the trial. I will not consider any other information, including any
statements you have made to me, which is not introduced in accordance with
the Military Rules of Evidence during the court-martial. Do you understand
that?
ACC:
.
Right to remain silent
SCM:
You have the absolute right during this trial to choose not to
testify and to say nothing at all about the offense(s) with which you are
charged. If you do not testify, I will not hold it against you in any way.
I will not consider it as an admission that you are guilty. If you remain
silent, I am not permitted to question you about the offense(s).
Right to testify concerning the offense(s)
However, if you choose, you may be sworn and testify as a witness
concerning the offense(s) charged against you. If you do that, I will consider
your testimony just like the testimony of any other witness.
[Note 2. Use the following if there is only one
specification.]
If one specification
If you decide to testify concerning the offense, you can be questioned
by me about the whole subject of the offense. Do you understand that?
ACC:
.
[Note 3. Use the following if there is more than
one specification.]
If more than one specification
SCM:
If you decide to testify, you may limit your testimony to any particular
offense charged against you and not testify concerning any other offense(s)
charged against you. If you do this, I may question you about the whole subject
of the offense about which you testify, but I may not question you about
any offense(s) concerning which you do not testify. Do you understand that?
ACC:
.
Right to testify, remain silent or make an unsworn statement
in extenuation and mitigation
SCM:
In addition, if you are found guilty of an offense, you will have
the right to testify under oath concerning matters regarding an appropriate
sentence. You may, however, remain silent, and I will not hold your silence
against you in any way. You may, if you wish, make an unsworn statement about
such matters. This statement may be oral, in writing, or both. If you testify,
I may cross-examine you. If you make an unsworn statement, however, I am
not permitted to question you about it, but I may receive evidence to contradict
anything contained in the statement. Do you understand that?
ACC:
.
Maximum punishment
SCM:
If I find you guilty (of the offense) (of any of the offenses charged),
the maximum sentence which I am authorized to impose is:
[Note 4. For an accused of a pay grade of E-4
or below, proceed as follows.]
E-4 and below
reduction to lowest enlisted pay grade; and
forfeiture of two-thirds of 1 month's pay; and
confinement for l month.
[Note 5. For an accused of a pay grade above E-4,
proceed as follows.]
E-5 and above
reduction to the next inferior pay grade; and
forfeiture of two-thirds of 1 month's pay; and
restriction to specified limits for 2 months.
SCM:
Do you understand the maximum punishment which this court-martial
is authorized to adjudge?
ACC:
.
Plea options
SCM:
You may plead not guilty or guilty to each offense with which you
are charged. You have an absolute right to plead not guilty and to require
that your guilt be proved beyond a reasonable doubt before you can be found
guilty. You have the right to plead not guilty even if you believe you are
guilty. Do you understand that?
ACC:
.
SCM:
If you believe you are guilty of an offense, you may, but are not
required to, plead guilty to that offense. If you plead guilty to an offense,
you are admitting that you committed that offense, and this court-martial
could find you guilty of that offense without hearing any evidence, and could
sentence you to the maximum penalty I explained to you before. Do you understand
that?
ACC:
.
Lesser included offenses
SCM:
[Examine the list of lesser included offenses under each
punitive article alleged to have been violated. See Part
You may plead not guilty to Charge , Specification
, as it now reads, but plead guilty to the offense
of , which is included in the offense charged. Of
course, you are not required to do this. If you do, then I can find you guilty
of this lesser offense without hearing evidence on it. Furthermore, I could
still hear evidence on the greater offense for purposes of deciding whether
you are guilty of it. Do you understand that?
ACC:
.
SCM:
Do you need more time to consider whether to object to trial by
summary court-martial or to prepare for trial?
ACC:
.
SCM:
[If time is requested or otherwise appropriate.]
We will convene the court-martial at . When we convene,
I will ask you whether you object to trial by summary court-martial. If you
do not object, I will then ask for your pleas to the charge(s) and specification(s),
and for you to make any motions you may have.
Trial Proceedings
Convene
SCM:
This summary court-martial is now in session.
Objection/consent to trial by SCM
SCM:
Do you object to trial by summary court-martial?
ACC:
.
Entries on record of trial
[Note 6. If there is an objection, adjourn the
court-martial and return the file to the convening authority. If the accused
does not object, proceed as follows. The accused may be asked to initial
the notation on the record of trial that the accused did or did not object
to trial by summary court-martial. This is not required, however.]
Readings of the charges
SCM:
Look at the charge sheet. Have you read the charge(s) and specification(s)?
ACC:
.
SCM:
Do you want me to read them to you?
ACC:
[If accused requests, read the charge(s) and specification(s).]
Arraignment
SCM:
How do you plead? Before you answer that question, if you have any
motion to dismiss (the) (any) charge or specification, or for other relief,
you should make it now.
ACC:
.
Motions
[Note 7. If the accused makes a motion to dismiss
or to grant other relief, or such a motion is raised by the summary court-martial,
do not proceed with the trial until the motions have been decided. _
See_ R.C.M. 905-907, and R.C.M. l304(b)(2)(c). After any motions
have been disposed of and if termination of the trial has not resulted, have
the accused enter pleas and proceed as indicated below.]
Pleas
ACC:
I plead: .
[Note 8. If the accused refuses to plead to any
offense charged, enter pleas of not guilty. If the accused refuses to enter
any plea, evidence must be presented to establish that the accused is the
person named in the specification(s) and is subject to court-martial jurisdiction. _
See_ R.C.M. 202, 1301(c)]
[Note 9. If the accused pleads not guilty to all
offenses charged, proceed to the section entitled "Procedures-Not
Guilty Pleas."]
[Note 10. If the accused pleads guilty to one or
more offenses, proceed as follows.]
Procedures-guilty pleas
SCM:
I will now explain the meaning and effect of your pleas, and question
you so that I can be sure you understand. Refer to the charge(s) and specification(s).
I will not accept your pleas of guilty unless you understand their meaning
and effect. You are legally and morally entitled to plead not guilty even
though you believe you are guilty, and to require that your guilt be proved
beyond a reasonable doubt. A plea of guilty is the strongest form of proof
known to the law. On your pleas of guilty alone, without receiving any evidence,
I can find you guilty of the offense(s) to which you have pleaded guilty.
I will not accept your pleas unless you realize that by your pleas you admit
every element of the offense(s) to which you have pleaded guilty, and that
you are pleading guilty because you really are guilty. If you are not convinced
that you are in fact guilty, you should not allow anything to influence you
to plead guilty. Do you understand that?
ACC:
.
SCM:
Do you have any questions?
ACC:
.
SCM:
By your pleas of guilty you give up three very important rights.
(You keep these rights with respect to any offense(s) to which you have pleaded
not guilty.) The rights which you give up when you plead guilty are:
First,
the right against self-incrimination. This means you give up the right to
say nothing at all about (this) (these) offense(s) to which you have pleaded
guilty. In a few minutes I will ask you questions about (this) (these) offense(s),
and you will have to answer my questions for me to accept your pleas of guilty.
Second,
the right to a trial of the facts by this court-martial. This means you give
up the right to have me decide whether you are guilty based upon the evidence
which would be presented.
Third, the right to be confronted by and to
cross-examine any witnesses against you. This means you give up the right
to have any witnesses against you appear, be sworn and testify, and to cross-examine
them under oath.
Do you understand these rights?
ACC:
.
SCM:
Do you understand that by pleading guilty you give up these rights?
ACC:
.
SCM:
On your pleas of guilty alone you could be sentenced to .
[Note 11. Re-read the appropriate sentencing section
at notes 4 or 5 above unless the summary court-martial is a rehearing or
new or other trial, in which case see R.C.M. 810(d).]
Do you have any questions about the sentence which could be imposed
as a result of your pleas of guilty?
ACC:
.
SCM:
Has anyone made any threat or tried in any other way to force you
to plead guilty?
ACC:
.
Pretrial agreement
SCM:
Are you pleading guilty because of any promises or understandings
between you and the convening authority or anyone else?
ACC:
.
[Note 12. If the accused answers yes, the summary
court-martial must inquire into the terms of such promises or understandings
in accordance with R.C.M. 910. See Appendix 8, Note 35 through
acceptance of plea.]
[Note 13. If the accused has pleaded guilty to
a lesser included offense, also ask the following question.]
Effect of guilty pleas to lesser included offenses
SCM:
Do you understand that your plea of guilty to the lesser included
offense of admits all the elements of the offense
charged except the element(s) of , and that no proof is necessary to
establish those elements admitted by your pleas?
ACC:
.
SCM:
The following elements state what would have to be proved beyond
a reasonable doubt before the court-martial could find you guilty if you
had pleaded not guilty. As I read each of these elements to you, ask yourself
whether each is true and whether you want to admit that each is true, and
then be prepared to discuss each of these elements with me when I have finished.
The
elements of the offense(s) which your pleas of guilty admit are .
[Note 14. Read the elements of the offense(s) from
the appropriate punitive article in Part IV. This advice should be specific
as to names, dates, places, amounts, and acts.]
Do you understand each of the elements of the offense(s)?
ACC:
.
SCM:
Do you believe, and admit, that taken together these elements correctly
describe what you did?
ACC:
.
[Note 15. The summary court-martial should now
question the accused about the circumstances of the offense(s) to which the
accused has pleaded guilty. The accused will he placed under oath for this
purpose. _ See_ oath below. The purpose of these questions
is to develop the circumstances in the accused's own words, so that the summary
court-martial may determine whether each element of the offense(s) is established.]
Oath to accused for guilty plea inquiry
SCM:
Do you (swear) (affirm) that the statements you are about to make
shall be the truth, the whole truth, and nothing but the truth (so help you
God)?
ACC:
.
SCM:
Do you have any questions about the meaning and effect of your pleas
of guilty?
ACC:
.
SCM:
Do you believe that you understand the meaning and effect of your
pleas of guilty?
ACC:
.
Determination of providence of pleas of guilty
[Note 16. Pleas of guilty may not be accepted unless
the summary court-martial finds that they are made voluntarily and with
understanding of their meaning and effect, and that the accused has knowingly,
intelligently, and consciously waived the rights against self-incrimination,
to a trial of the facts by a court-martial, and to be confronted by the
witnesses. Pleas of guilty may be improvident when the accused makes statements
at any time during the trial which indicate that there may be a defense to
the offense(s), or which are otherwise inconsistent with an admission of
guilt. If the accused makes such statements and persists in them after questioning,
then the summary court-martial must reject the accused's guilty pleas and
enter pleas of not guilty for the accused. Turn to the section entitled "Procedures-Not
Guilty Pleas" and continue as indicated. If (the) (any of the) accused's
pleas of guilty are found provident, the summary court-martial should announce
findings as follows.]
Acceptance of guilty pleas
SCM:
I find that the pleas of guilty are made voluntarily and with understanding
of their meaning and effect. I further specifically find that you have knowingly,
intelligently, and consciously waived your rights against self-incrimination,
to a trial of the facts by a court-martial, and to be confronted by the
witnesses against you. Accordingly, I find the pleas are provident, and I
accept them. However, you may ask to take back your guilty pleas at any time
before the sentence is announced. If you have a sound reason for your request,
I will grant it. Do you understand that?
ACC:
.
If any not guilty pleas remain
[Note 17. If no pleas of not guilty remain, go
to note 26. If the accused has changed pleas of guilty to not guilty, if
the summary court-martial has entered pleas of not guilty to any charge(s)
and specification(s), or if the accused has pleaded not guilty to any of
the offenses or pleaded guilty to a lesser included offense, proceed as
follows.]
Witnesses for the accused
SCM:
If there are witnesses you would like to call to testify for you,
give me the name, rank, and organization or address of each, and the reason
you think they should be here, and I will arrange to have them present if
their testimony would be material. Do you want to call witnesses?
ACC:
.
[Note 18. The summary court-martial should estimate
the length of the case and arrange for the attendance of witnesses. The prosecution
evidence should be presented before evidence for the defense.]
Calling witnesses
SCM:
I call as a witness .
Witness oath
SCM:
[To the witness, both standing] Raise your right
hand.
Do you swear (or affirm) that the evidence you shall give in the
case now in hearing shall be the truth, the whole truth, and nothing but
the truth (, so help you God)? [Do not use the phrase, "so
help you God," if the witness prefers to affirm.]
WIT:
.
SCM:
Be seated. State your full name, rank, organization, and armed force
([or if a civilian witness] full name, address, and occupation).
WIT:
.
[Note 19. The summary court-martial should question
each witness concerning the alleged offense(s). After direct examination
of each witness, the accused must be given an opportunity to cross-examine.
If the accused declines to cross-examine the witness, the summary court-martial
should ask any questions that it feels the accused should have asked. If
cross-examination occurs, the summary court-martial may ask questions on
redirect examination and the accused may ask further questions in recross-examination.]
[Note 20. After each witness has testified, instruct
the witness as follows.]
SCM:
Do not discuss this case with anyone except the accused, counsel,
or myself until after the trial is over. Should anyone else attempt to discuss
this case with you, refuse to do so and report the attempt to me immediately.
Do you understand that?
WIT:
.
SCM:
[To the witness]You are excused.
Recalling witnesses
[Note 2l. Witnesses may be recalled if necessary.
A witness who is recalled is still under oath and should be so reminded.]
[Note 22. After all witnesses against the accused
have been called and any other evidence has been presented, the summary
court-martial will announce the following.]
SCM:
That completes the evidence against you. I will now consider the
evidence in your favor.
Presentation of defense case
[Note 23. Witnesses for the accused should now
be called to testify and other evidence should be presented. Before the defense
case is terminated the summary court-martial should ask the accused if there
are other matters the accused wants presented. If the accused has not testified,
the summary court-martial should remind the accused of the right to testify
or to remain silent.]
Closing argument
SCM:
I have now heard all of the evidence. You may make an argument on
this evidence before I decide whether you are guilty or not guilty.
Deliberations on findings
[Note 24. The court-martial should normally close
for deliberations. If the summary court-martial decides to close, proceed
as follows.]
SCM:
The court-martial is closed so that I may review the evidence. Wait
outside the courtroom until I recall you.
[Note 25. The summary court-martial should review
the evidence and applicable law. It must acquit the accused unless it is
convinced beyond a reasonable doubt by the evidence it has received in court
in the presence of the accused that each element of the alleged offense(s)
has been proved beyond a reasonable doubt. See R.C.M. 918.
It may not consider any facts which were not admitted into evidence, such
as a confession or admission of the accused which was excluded because it
was taken in violation of Mil. R. Evid. 304. The summary court-martial may
find the accused guilty of only the offense(s) charged, a lesser included
offense, or of an offense which does not change the identity of an offense
charged or a lesser included offense thereof.]
Announcing the findings
[Note 26. The summary court-martial should recall
the accused, who will stand before the court-martial when findings are announced.
All findings including any findings of guilty resulting from guilty pleas,
should be announced at this time. The following forms should be used in announcing
findings.]
Not guilty of all offenses
SCM:
I find you of (the) (all) Charge(s) and Specification(s): Not Guilty.
Guilty of all offenses
I find you of (the) (all) Charge(s) and Specification(s): Guilty.
Guilty of some but not all
offenses
I find you of (the) Specification () of
(the) Charge (): Not Guilty; of (the) Specification
() of (the) Charge (): Guilty;
of (the) Charge (): Guilty.
Guilty of lesser included offense or with exceptions and
substitutions
I find you of (the Specification () of (the)
Charge
(): Guilty, except the words and ; (substituting therefor, respectively,
the words and ;) of the
excepted words: Not Guilty; (of the substituted words: Guilty;) of the Charge:
(Guilty) (Not Guilty, but Guilty of a violation of Article , UCMJ, a lesser included offense).
Entry of findings
[Note 27. The summary court-martial shall note
all findings on the record of trial.]
Procedure if total acquittal
[Note 28. If the accused has been found not guilty
of all charges and specifications, adjourn the court-martial, excuse the
accused, complete the record of trial, and return the charge sheet, personnel
records, allied papers, and record of trial to the convening authority.]
Procedure if any findings of guilty
[Note 29. If the accused has been found guilty
of any offense, proceed as follows.]
Presentence procedure
SCM:
I will now receive information in order to decide on an appropriate
sentence. Look at the information concerning you on the front page of the
charge sheet. Is it correct?
[Note 30. If the accused alleges that any of the
information is incorrect, the summary court-martial must determine whether
it is correct and correct the charge sheet, if necessary.]
[Note 31. Evidence from the accused's personnel
records, including evidence favorable to the accused, should now be received
in accordance with R.C.M. 1001(b)(2). These records should be shown to the
accused.]
SCM:
Do you know any reason why I should not consider these?
ACC:
.
[Note 32. The summary court-martial shall resolve
objections under R.C.M. 1002(b)(2) and the Military Rules of Evidence and
then proceed as follows. See also R.C.M. 1001(b)(3), (4),
and (5) concerning other evidence which may be introduced.]
Extenuation and mitigation
SCM:
In addition to the information already admitted which is favorable
to you, and which I will consider, you may call witnesses who are reasonably
available, you may present evidence, and you may make a statement. This
information may be to explain the circumstances of the offense(s), including
any reasons for committing the offense(s), and to lessen the punishment for
the offense(s) regardless of the circumstances. You may show particular acts
of good conduct or bravery, and evidence of your reputation in the service
for efficiency, fidelity, obedience, temperance, courage, or any other trait
desirable in a good servicemember. You may call available witnesses or you
may use letters, affidavits, certificates of military and civil officers,
or other similar writings. If you introduce such matters, I may receive written
evidence for the purpose of contradicting the matters you presented. If you
want me to get some military records that you would otherwise be unable to
obtain, give me a list of these documents. If you intend to introduce letters,
affidavits, or other documents, but you do not have them, tell me so that
I can help you get them. Do you understand that?
ACC:
.
Rights of accused to testify, remain silent, and make
an
unsworn statement
SCM:
I informed you earlier of your right to testify under oath, to remain
silent, and to make an unsworn statement about these matters.
SCM:
Do you understand these rights?
ACC:
.
SCM:
Do you wish to call witnesses or introduce anything in writing?
ACC:
.
[Note 33. If the accused wants the summary court-martial
to obtain evidence, arrange to have the evidence produced as soon as practicable.]
[Note 34. The summary court-martial should now
receive evidence favorable to the accused. If the accused does not produce
evidence, the summary court-martial may do so if there are matters favorable
to the accused which should be presented.]
SCM:
Do you wish to testify or make an unsworn statement?
ACC:
.
Questions concerning pleas of guilty
[Note 35. If as a result of matters received on
sentencing, including the accused's testimony or an unsworn statement, any
matter is disclosed which is inconsistent with the pleas of guilty, the summary
court-martial must immediately inform the accused and resolve the matter.
See Note 16.]
Argument on sentence
SCM:
You may make an argument on an appropriate sentence.
ACC:
.
Deliberations prior to
announcing sentence
[Note 36. After receiving all matters relevant
to sentencing, the summary court-martial should normally close for deliberations.
If the summary court-martial decides to close, proceed as follows.]
Closing the court-martial
SCM:
This court-martial is closed for determination of the sentence.
Wait outside the courtroom until I recall you.
[Note 37. See Appendix 11 concerning
proper form of sentence. Once the summary court-martial has determined the
sentence, it should reconvene the court-martial and announce the sentence
as follows.]
Announcement of sentence
SCM:
Please rise. I sentence you to .
[Note 38. If the sentence includes confinement,
advise the accused as follows.]
SCM:
You have the right to request in writing that [name of
convening authority] defer your sentence to confinement. Deferment
is not a form of clemency and is not the same as suspension of a sentence.
It merely postpones the running of a sentence to confinement.
[Note 39. Whether or not the sentence includes
confinement, advise the accused as follows.]
SCM:
You have the right to submit in writing a petition or statement
to the convening authority. This statement may include any matters you feel
the convening authority should consider, a request for clemency, or both.
This statement must be submitted within 7 days, unless you request and convening
authority approves an extension of up to 20 days. After the convening authority
takes action, your case will be reviewed by a judge advocate for legal error.
You may suggest, in writing, legal errors for the judge advocate to consider.
If, after final action has been taken in your case, you believe that there
has been a legal error, you may request review of your case by The Judge
Advocate General of . Do you understand these rights?
ACC:
.
Adjourning the court-martial
SCM:
This court-martial is adjourned.
Entry on charge sheet
[Note 40. Record the sentence in the record of
trial, inform the convening authority of the findings, recommendations for
suspension, if any, and any deferment request. If the sentence includes confinement,
arrange for the delivery of the accused to the accused's commander, or someone
designated by the commander, for appropriate action. Ensure that the commander
is informed of the sentence. Complete the record of trial and forward to
the convening authority.]
See R.C.M. 922. In
announcing the findings the president or, in cases tried by military judge
alone, the military judge should announce:
"(Name of accused), this court-martial finds
you ."
The findings should now be announced following one of the forms in b below, or
any necessary modification or combination thereof.
The following may, in combination with the format for
announcing the findings above, be used as a format for a findings worksheet,
appropriately tailored for the specific case:
Of all Specifications and Charges: Not Guilty
Of (the) Specification () of (the)
Charge
() and of (the) Charge ():
Not Guilty only by Reason of Lack of Mental
Responsibility
Of all Specifications and Charges: Guilty
Of all Specification(s) of Charge I: Guilty
Of Charge I: Guilty
Of all Specification(s) of Charge II: Not Guilty
Of Charge II: Not Guilty
Of Specification(s) of Charge I: Guilty
Of Specification(s) of Charge I: Not
Guilty
Of Charge I: Guilty
Of (the) Specification () of Charge I: Guilty
except the words "";
Of the excepted words: Not Guilty
Of Charge I: (Guilty) (Not Guilty, but Guilty of
a violation of Article )
Of (the) Specification () of Charge I: Guilty
except the words "," substituting
therefor the words "";
Of the excepted words: Not Guilty
Of the substituted words: Guilty
Of Charge I: (Guilty) (Not Guilty, but Guilty of
a violation of Article )
Of Specification 1 of (the) Charge (): Guilty,
of Specification 2 of (the) Charge (): Guilty,
except the words "."
Of (the) Charge (), as to Specification 1:
Guilty, as to Specification 2: Not Guilty, but
Guilty of a violation of Article .
See R.C.M. 1007. In announcing the sentence, the president or, in cases tried by military judge alone, the military judge should announce:
"(Name of accused), this court-martial sentences you ."
The sentence should now be announced following one of the forms contained in b below, or any necessary modification or combination thereof. Each of the forms of punishment prescribed in b are separate, that is, the adjudging of one form of punishment is not contingent upon any other punishment also being adjudged. The forms in b, however, may be combined and modified so long as the punishments adjudged are not forbidden by the code and do not exceed the maximum authorized by this Manual (see R.C.M. 1003 and Part IV) in the particular case being tried. In announcing a sentence consisting of combined punishments, the president or military judge may, for example, state:
"To forfeit all pay and allowances, to be reduced to Private, E-1, to be confined for one year, and to be dishonorably discharged from the service."
"To forfeit $350.00 pay per month for six months, to be confined for six months, and to be discharged from the service with a bad conduct discharge."
"To forfeit all pay and allowances, to be confined for one year and to be dismissed from the service."
"To forfeit $250.00 pay per month for one month, and to perform hard labor without confinement for one month."
The following may, in combination with the format for
announcing the sentence above, be used as a format
for a sentence worksheet, appropriately tailored for the specific case:
To no punishment
To be reprimanded.
To forfeit $ pay per month for
(months) (years).
To forfeit all pay and allowances.
To pay the United States a fine of $ (and
to serve (additional) confinement of (days) (months)
(years) if the fine is not paid).
To be reduced to .
To be restricted to the limits of
for (days) (months).
To perform hard labor without confinement
for (days)
(months).
To be confined for (days) (months) (years)
(the length of your natural life with eligibility) (the length of your natural
life without eligibility for parole).
To be confined on (bread and water) (diminished rations) for days.
To be discharged from the service with a bad-conduct discharge
(Enlisted Personnel only).
To be dishonorably discharged from the service (Enlisted Personnel
and Noncommissioned Warrant Officers only).
To be dismissed from the service (Commissioned Officers, Commissioned
Warrant Officers, Cadets, and Midshipmen only).
To be put to death.
[Note: A court-martial has no authority to suspend a sentence
or any part of a sentence.]
This chart was compiled for convenience purposes only and is not
the authority for specific punishments. See Part IV and
R.C.M. 1003 for specific limits and additional information concerning maximum
punishments.
Article
Offense
Discharge
Confinement
Forfeitures
77
Principals (see Part IV, Para. 1 and pertinent
offenses)
78
Accessory after the fact (see Part IV, Para.
3.e.)
79
Lesser included offenses (see Part IV, Para.
2 and pertinent offenses)
80
Attempts (see Part IV, Para. 4.e.)
81
Conspiracy (see Part IV, Para. 5.e.)
82
Solicitation
If solicited offense committed, or attempted, _
see_ Part IV, Para. 6.e.
If solicited offense not committed:
Solicitation to desert1
DD, BCD
3 yrs.1
Total
Solicitation to mutiny1
DD, BCD
10 yrs.1
Total
Solicitation to commit act of misbehavior before
enemy1
DD, BCD
10 yrs.1
Total
Solicitation to commit act of sedition
1
DD, BCD
10 yrs.1
Total
83
Fraudulent enlistment, appointment
DD, BCD
2 yrs.
Total
Fraudulent separation
DD, BCD
5 yrs.
Total
84
Effecting unlawful enlistment, appointment, separation
DD, BCD
5 yrs.
Total
85
Desertion
In time of war
Death, DD, BCD
Life4
Total
Intent to avoid hazardous duty, shirk important service
1
DD, BCD
5 yrs.1
Total
Other cases
Terminated by apprehension
DD, BCD
3 yrs.1
Total
Terminated otherwise
DD, BCD
2 yrs.1
Total
86
Absence without leave, etc.
Failure to go, going from place of duty
None
1 mo.
2/3 1 mo.
Absence from unit, organization, etc.
Not more than 3 days
None
1 mo.
2/3 1 mo.
More than 3, not more than 30 days
None
6 mos.
2/3 6 mos.
More than 30 days
DD, BCD
1 yr.
Total
More than 30 days and terminated by apprehension
DD, BCD
18 mos.
Total
Absence from guard or watch
None
3 mos.
2/3 3 mos.
Absence from guard or watch with intent to abandon
BCD
6 mos.
Total
Absence with intent to avoid maneuvers, field exercises
BCD
6 mos.
Total
87
Missing movement
Through design
DD, BCD
2 yrs.
Total
Through neglect
BCD
1 yr.
Total
88
Contempt toward officials
Dismissal
1 yr.
Total
89
Disrespect toward superior commissioned officer
BCD
1 yr.
Total
90
Assaulting, willfully disobeying superior commissioned officer
In time of war
Death, DD, BCD
Life4
Total
Striking, drawing or lifting up any weapon or offering
any violence
toward superior commissioned officer in the execution
of duty1
DD, BCD
10 yrs.1
Total
Willfully disobeying lawful order of superior commissioned
officer1
DD, BCD
5 yrs.1
Total
91
Insubordinate conduct toward warrant, noncommissioned, petty
officer
Striking or assaulting:
Warrant officer
DD, BCD
5 yrs.
Total
Superior noncommissioned or petty officer
DD, BCD
3 yrs.
Total
Other noncommissioned or petty officer
DD, BCD
l yr.
Total
Willfully disobeying:
Warrant officer
DD, BCD
2 yrs.
Total
Noncommissioned or petty officer
BCD
l yr.
Total
Contempt or disrespect toward:
Warrant Officer
BCD
9 mos.
Total
Superior noncommissioned or petty officer
BCD
6 mos.
Total
Other noncommissioned or petty officer.
None
3 mos.
2/3 3 mos.
92
Failure to obey order, regulation
Violation of or failure to obey general order or regulation
2
DD, BCD
2 yrs.
Total
Violation of or failure to obey other order 2
BCD
6 mos.
Total
Dereliction in performance of duties
Through neglect or culpable inefficiency
None
3 mos.
2/3 3 mos.
Through neglect or culpable inefficiency resulting in death or
grievous bodily harm
BCD
18 mos.
Total
Willful
BCD
6 mos.
Total
Willful dereliction of duty resulting in death or grievous
bodily harm
DD, BCD
2 yrs.
Total
93
Cruelty & maltreatment of subordinates
DD, BCD
2 yrs.
Total
94
Mutiny & sedition
Death, DD, BCD
Life4
Total
95
Resisting apprehension, flight, breach of arrest, escape
Resisting apprehension
BCD
1 yr.
Total
Flight from apprehension
BCD
1 yr.
Total
Breaking arrest
BCD
6 mos.
Total
Escape from custody, pretrial confinement, or confinement
on bread
and water or diminished rations imposed pursuant to Article 15
DD, BCD
1 yr.
Total
Escape from post-trial confinement
DD, BCD
5 yrs.
Total
96
Releasing a prisoner without proper authority
DD, BCD
2 yrs.
Total
Suffering a prisoner to escape through neglect
BCD
1 yr.
Total
Suffering a prisoner to escape through design
DD, BCD
2 yrs.
Total
97
Unlawful detention
DD, BCD
3 yrs.
Total
98
Noncompliance with procedural rules, etc.
Unnecessary delay in disposing of case
BCD
6 mos.
Total
Knowingly, intentionally failing to enforce or comply with provisions of the code
DD, BCD
5 yrs.
Total
99
Misbehavior before enemy
Death, DD, BCD
Life4
Total
100
Subordinate compelling surrender
Death, DD, BCD
Life4
Total
101
Improper use of countersign
Death, DD, BCD
Life4
Total
102
Forcing safeguard
Death, DD, BCD
Life4
Total
103
Captured, abandoned property; failure to secure, etc.
Of value of $500.00 or less
BCD
6 mos.
Total
Of value of more than $500.00
DD, BCD
5 yrs.
Total
Any firearm or explosive
DD, BCD
5 yrs.
Total
Looting or pillaging
DD, BCD
Life4
Total
104
Aiding the enemy
Death, DD, BCD
Life4
Total
105
Misconduct as prisoner
DD, BCD
Life4
Total
106
Spying
Mandatory Death, DD, BCD
Not
applicable
Total
106a
Espionage
Cases listed in Art. 106a(a)(l)(A)-(D)
Death, DD, BCD
Life4
Total
Other cases
DD, BCD
Life4
Total
107
False official statements
DD, BCD
5 yrs.
Total
108
Military property; loss, damage, destruction, disposition
Selling or otherwise disposing
Of a value of $500.00 or less
BCD
1 yr.
Total
Of a value of more than $500.00
DD, BCD
10 yrs.
Total
Any firearm or explosive
DD, BCD
10 yrs.
Total
Damaging, destroying, losing or suffering to be lost,
damaged,
destroyed, sold, or wrongfully disposed:
Through neglect, of a value or damage of:
$500.00 or less
None
6 mos.
2/3 6 mos.
More than $500.00
BCD
1 yr.
Total
Willfully, of a value or damage of
$500.00 or less
BCD
1 yr.
Total
More than $500.00
DD, BCD
10 yrs.
Total
Any firearm or explosive
DD, BCD
10 yrs.
Total
109
Property other than military property of U.S.: waste, spoilage,
or
destruction.
Wasting, spoiling, destroying, or damaging property of
a value of:
$500.00 or less
BCD
1 yr.
Total
More than $500.00
DD, BCD
5 yrs.
Total
110
Improper hazarding of vessel
Willfully and wrongfully
Death, DD, BCD
Life4
Total
Negligently
DD, BCD
2 yrs.
Total
111
Drunk or reckless operation of vehicle, airscraft, or vessel
Resulting in personal injury
DD, BCD
18 mos.
Total
No personal injury involved
BCD
6 mos.
Total
112
Drunk on duty
BCD
9 mos.
Total
112a
Wrongful use, possession, manufacture or introduction of controlled substances
3
Wrongful use, possession, manufacture, or introduction
of:
Amphetamine, cocaine, heroin, lysergic acid diethylamide,
marijuana (except possession of less than 30 grams
or use),
methamphetamine, opium, phencyclidine, secobarbital,
and
Schedule I, II, and III controlled substances
DD, BCD
5 yrs.
Total
Marijuana (possession of less than 30 grams or
use), phenobarbital,
and Schedule IV and V controlled substances
DD, BCD
2 yrs.
Total
Wrongful distribution of, or, with intent to distribute,
wrongful
possession, manufacture, introduction, or wrongful
importation of
or exportation of:
Amphetamine, cocaine, heroin, lysergic acid diethylamide,
marijuana, methamphetamine, opium, phencyclidine,
secobarbital,
and Schedule I, II, and III controlled substances
DD, BCD
15 yrs.
Total
Phenobarbital and Schedule IV and V controlled
substances
DD, BCD
10 yrs.
Total
113
Misbehavior of sentinel or lookout
In time of war
Death, DD, BCD
Life4
Total
In other time:
While receiving special pay under 37 U.S.C. 310
DD, BCD
10 yrs.
Total
In all other places
DD, BCD
1 yr.
Total
114
Dueling
DD, BCD
1 yr.
Total
115
Malingering
Feigning illness, physical disablement, mental lapse, or derangement
In time of war, or in a hostile fire pay zone
DD, BCD
3 yrs.
Total
Other
DD, BCD
1 yr.
Total
Intentional self-inflicted injury
In time of war, or in a hostile fire pay zone
DD, BCD
10 yrs.
Total
Other
DD, BCD
5 yrs.
Total
116
Riot
DD, BCD
10 yrs.
Total
Breach of peace
None
6 mos.
2/3 6 mos.
117
Provoking speech, gestures
None
6 mos.
2/3 6 mos.
118
Murder
Article 118(1) or (4)Death, mandatory
minimum life with parole, DD, BCD
Life4
Total
Article 118(2) or (3)
DD, BCD
Life4
Total
119
Manslaughter
Voluntary
DD, BCD
15 yrs.
Total
Involuntary
DD, BCD
10 yrs.
Total
Voluntary manslaughter of a child under the age of 16 years
DD, BCD
20 yrs.
Total
Involuntary manslaughter of a child under the age of 16 years
DD, BCD
15 yrs.
Total
119a
Death or injury of an Unborn Child (see Part IV, Para. 44a.(a)(1))
119a
Injuring or killing an unborn child
Such punishment, other than death, as a court-martial may direct, but such punishment shall be consistent with the punishment had the bodily injury or death occurred to the unborn child's mother.
Attempting to kill an unborn child
Such punishment, other than death, as a court-martial may direct, but such punishment shall be consistent with the punishment had the attempt been made to kill the unborn child's mother.
Intentionally killing an unborn child
Such punishment, other than death, as a court-martial may direct, but such punishment shall be consistent with the punishment had the death occurred to the unborn child's mother.
120
Rape and sexual assault generally
Rape
Mandatory DD5
Life4
Total
Sexual Assault
Mandatory DD5
30 yrs
Total
Aggravated Sexual Contact
DD,BCD
20 yrs
Total
Abusive Sexual Contact
DD,BCD
7 yrs
Total
120a
Stalking
DD, BCD
3 yrs
Total
120b
Rape and sexual assault of a child
Rape of a Child
Mandatory DD5
Life4
Total
Sexual Assault of a Child
Mandatory DD5
30 yrs
Total
Sexual Abuse of a Child
Cases Involving Sexual Contact
DD,BCD
20 yrs
Total
Other Cases
DD,BCD
15 yrs
Total
120c
Other sexual misconduct
Indecent Viewing
DD,BCD
1 yr
Total
Indecent Visual Recording
DD,BCD
5 yr
Total
Broadcasting or Distributing of an Indecent Visual Recording
DD,BCD
7 yr
Total
Forcible Pandering
DD,BCD
12 yr
Total
Indecent Exposure
DD,BCD
1 yr
Total
[Note: The Article 120, 120b, and 120c maximum punishments apply to offenses committed after 28 June 2012. See Appendices 23, 27, and 28.]
121
Larceny
Of military property of a value of $500.00 or less
BCD
1 yr.
Total
Of property other than military property of a value of
$500.00 or less
BCD
6 mos.
Total
Of military property of a value of more than $500.00
or of any
military motor vehicle, aircraft, vessel, firearm, or
explosive
DD, BCD
10 yrs.
Total
Of property other than military property of a value of
more than
$500.00 or any motor vehicle, aircraft, vessel, firearm,
or explosive
DD, BCD
5 yrs.
Total
Wrongful appropriation
Of a value of $500.00 or less
None
3 mos.
2/3 3 mos.
Of a value of more than $500.00
BCD
6 mos.
Total
Of any motor vehicle, aircraft, vessel, firearm, or
explosive
DD, BCD
2 yrs.
Total
122
Robbery
Committed with a firearm
DD, BCD
15 yrs.
Total
Other cases
DD, BCD
10 yrs.
Total
123
Forgery
DD, BCD
5 yrs.
Total
123a
Checks, etc., insufficient funds, intent to
To procure anything of value with intent to defraud
$500.00 or less
BCD
6 mos.
Total
More than $500.00
DD, BCD
5 yrs.
Total
For payment of past due obligation, and other cases, intent to deceive
BCD
6 mos.
Total
124
Maiming
DD, BCD
20 yrs
Total
125
Forcible sodomy; bestiality
Forcible sodomy
Mandatory
Life4
Total
Bestiality
DD, BCD
5 yrs
Total
126
Arson
Aggravated
DD, BCD
20 yrs.
Total
Other cases, where property value is:
$500.00 or less
DD, BCD
1 yr.
Total
More than $500.00
DD, BCD
5 yrs.
Total
127
Extortion
DD, BCD
3 yrs.
Total
128
Assaults
Simple Assault:
Generally
None
3 mos.
2/3 3 mos.
With an unloaded firearm
DD, BCD
3 yrs.
Total
Assault consummated by battery
BCD
6 mos.
Total
Assault upon commissioned officer of U.S. or friendly
power not in
execution of office
DD, BCD
3 yrs.
Total
Assault upon warrant officer, not in execution of office
DD, BCD
18 mos.
Total
Assault upon noncommissioned or petty officer not in
execution of
office
BCD
6 mos.
Total
Assault upon, in execution of office, person serving
as sentinel,
lookout, security policeman, military policeman, shore
patrol, master
at arms, or civil law enforcement
DD, BCD
3 yrs.
Total
Assault consummated by battery upon child under l6 years
DD, BCD
2 yrs.
Total
Assault with a dangerous weapon or other means or force likely to produce
death or grievous bodily harm:
Committed with loaded firearm
DD, BCD
8 yrs.
Total
Other cases
DD, BCD
3 yrs.
Total
Assault in which grievous bodily harm is intentionally
inflicted:
With a loaded firearm
DD, BCD
10 yrs.
Total
Other cases
DD, BCD
5 yrs.
Total
Aggravated assault with a dangerous weapon or other means or force
likely to produce death or grievous bodily harm when committed
upon a child under the age of 16 years
DD, BCD
5 yrs
Total
Aggravated assault in which grievous bodily harm is intentionally
inflicted when committed upon a child under the age of 16 years
DD, BCD
8 yrs
Total
129
Burglary
DD, BCD
10 yrs.
Total
130
Housebreaking
DD, BCD
5 yrs.
Total
131
Perjury
DD, BCD
5 yrs.
Total
132
Frauds against the United States
Offenses under article 132(1) or (2)
DD, BCD
5 yrs.
Total
Offenses under article 132(3) or (4)
$500.00 or less
BCD
6 mos.
Total
More than $500.00
DD, BCD
5 yrs.
Total
133
Conduct unbecoming officer (see Part IV, para.
59e)
Dismissal
l yr. or as prescribed
Total
134
Abusing public animal
None
3 mos.
2/3 3 mos.
Adultery
DD, BCD
1 yr.
Total
Assault
With intent to commit murder or rape
DD, BCD
20 yrs.
Total
With intent to commit voluntary manslaughter, robbery, forcible
sodomy, arson, or burglary
DD, BCD
10 yrs
Total
With intent to commit housebreaking
DD, BCD
5 yrs.
Total
Bigamy
DD, BCD
2 yrs.
Total
Bribery
DD, BCD
5 yrs.
Total
Graft
DD, BCD
3 yrs.
Total
Burning with intent to defraud
DD, BCD
10 yrs.
Total
Check, worthless, making and uttering-by dishonorably
failing to
maintain funds
BCD
6 mos.
Total
Child Endangerment:
Endangerment by design resulting in grievous bodily harm
DD, BCD
8 yrs
Total
Endangerment by design resulting in harm
DD, BCD
5 yrs
Total
Other cases by design
DD, BCD
4 yrs
Total
Endangerment by culpable negligence resulting in grievous bodily
harm
DD, BCD
3 yrs
Total
Endangerment by culpable negligence resulting in
harm
BCD
2 yrs
Total
Other cases by culpable negligence
BCD
1 yr
Total
Child Pornography
Possessing, receiving, or viewing
DD, BCD
10 yrs.
Total
Possessing child pornography with intent to distribute
DD, BCD
15 yrs.
Total
Distributing child pornography
DB, BCD
20 yrs.
Total
Producing child pornography
DD, BCD
30 yrs.
Total
Cohabitation, wrongful
None
4 mos.
2/3 4 mos.
Correctional custody, escape from
DD, BCD
1 yr.
Total
Correctional custody, breach of
BCD
6 mos.
Total
Debt, dishonorably failing to pay
BCD
6 mos.
Total
Disloyal statements
DD, BCD
3 yrs.
Total
Disorderly conduct
Under such circumstances as to bring discredit
None
4 mos.
2/3 4 mos.
Other cases
None
1 mo.
2/3 1 mo.
Drunkenness
Aboard ship or under such circumstances as to bring
discredit
None
3 mos.
2/3 3 mos.
Other cases
None
1 mo.
2/3 1 mo.
Drunk and disorderly
Aboard ship
BCD
6 mos.
Total
Under such circumstances as to bring discredit
None
6 mos.
2/3 6 mos.
Other cases
None
3 mos.
2/3 3 mos.
Drinking liquor with prisoner
None
3 mos.
2/3 3 mos.
Drunk prisoner
None
3 mos.
2/3 3 mos.
Drunkenness-incapacitating oneself for performance of
duties through
prior indulgence in intoxicating liquor or drugs
None
3 mos.
2/3 3 mos.
False or unauthorized pass offenses
Possessing or using with intent to defraud or deceive,
or making,
altering, counterfeiting, tampering with, or selling
DD, BCD
3 yrs.
Total
All other cases
BCD
6 mos.
Total
False pretenses, obtaining services under
Of a value of $500.00 or less
BCD
6 mos.
Total
Of a value of more than $500.00
DD, BCD
5 yrs.
Total
False swearing
DD, BCD
3 yrs.
Total
Firearm, discharging-through negligence
None
3 mos.
2/3 3 mos.
Firearm, discharging-willfully, under such circumstances
as to
endanger human life
DD, BCD
1 yr.
Total
Fleeing scene of accident
BCD
6 mos.
Total
Fraternization
Dismissal
2 yrs.
Total
134
Gambling with subordinate
None
3 mos.
2/3 3 mos.
Homicide, negligent
DD, BCD
3 yrs.
Total
Impersonation
With intent to defraud
DD, BCD
3 yrs.
Total
Other cases
BCD
6 mos.
Total
Indecent language
Communicated to child under the age of 16 yrs
DD, BCD
2 yrs.
Total
Other cases
BCD
6 mos.
Total
Jumping from vessel into the water
BCD
6 mos.
Total
Kidnapping
DD, BCD
Life4
Total
Mail: taking, opening, secreting, destroying, or stealing
DD, BCD
5 yrs.
Total
Mails: depositing or causing to be deposited obscene matters
in
DD, BCD
5 yrs.
Total
Misprision of serious offense
DD, BCD
3 yrs.
Total
Obstructing justice
DD, BCD
5 yrs.
Total
Wrongful interference with an adverse administrative
proceeding
DD, BCD
5 yrs.
Total
Pandering
DD, BCD
5 yrs.
Total
Prostitution and patronizing a prostitute
DD, BCD
1 yr.
Total
Parole, violation of
BCD
6 mos.
2/3 6 mos.
Perjury, subornation of
DD, BCD
5 yrs.
Total
Public record: altering, concealing, removing, mutilating,
obliterating, or destroying
DD, BCD
3 yrs.
Total
Quarantine: breaking
None
6 mos.
2/3 6 mos.
Reckless endangerment
BCD
1 yr.
Total
Restriction, breaking
None
1 mo.
2/3 1 mo.
Seizure: destruction, removal, or disposal of property to
prevent
DD, BCD
1 yr.
Total
Self-injury without intent to avoid service
In time of war, or in a hostile fire pay zone
DD
5 yrs.
Total
Other
DD
2 yrs.
Total
Sentinel, lookout
Disrespect to
None
3 mos.
2/3 3 mos.
Loitering or wrongfully sitting on post by
In time of war or while receiving special pay under 37 USC 310
DD, BCD
2 yrs.
Total
Other cases
BCD
6 mos.
Total
Soliciting another to commit an offense (see
Part IV, para. 105e)
Of a value of $500.00 or less
BCD
6 mos.
Total
Of a value of more than $500.00
DD, BCD
3 yrs.
Total
Stolen property: knowingly receiving, buying, concealing
Of a value of $500.00 or less
BCD
6 mos.
Total
Of a value of more than $500.00
DD
3 yrs.
Total
Straggling
None
3 mos.
2/3 3 mos.
Testify, wrongfully refusing to
DD, BCD
5 yrs.
Total
Threat, bomb, or hoax
DD, BCD
10 yrs.
Total
Threat, communicating
DD, BCD
3 yrs.
Total
Unlawful entry
BCD
6 mos.
Total
Weapon: concealed, carrying
BCD
1 yr.
Total
Wearing unauthorized insignia, decoration, badge, ribbon,
device, or lapel button
BCD
6 mos.
Total
Suspended in time of war.
See paragraph 16e(1) & (2) Note,
Part IV
When any offense under paragraph 37, Part IV, is committed:
while the accused is on duty as a sentinel or lookout; on board a vessel
or aircraft used by or under the control of the armed forces; in or at a
missile launch facility used by or under the control of the armed forces;
while receiving special pay under 37 U.S.C. sec. 310; in time of war; or
in a confinement facility used by or under the control of the armed forces,
the maximum period of confinement authorized for such offense shall be increased
by 5 years.
With or without eligibility for parole.
A dishonorable discharge can be reduced to a bad-conduct discharge by the convening authority in accordance with a pretrial agreement.
This chart was compiled for convenience purposes only and is not the ultimate authority for specific lesser included offenses. Lesser offenses are those which are necessarily included in the offense charged. See Article 79. Depending on the factual circumstances
in each case, the offenses listed below may be considered lesser included. The elements of the proposed lesser included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the greater offense and vice versa. The "elements test" is the proper method for determining lesser included offenses. See Appendix 23.
Attempts to commit an offense may constitute a lesser included offense and are not listed. See Article 80.
Article
Offense
Lesser Included Offense
77
Principals
See Part IV, Para. 1
78
Accessory after the fact
See Part IV, Para. 2
79
Conviction of lesser included offenses
See Part IV, Para. 3
80
Attempts
See Part IV, Para. 4
81
Conspiracy
See Part IV, Para. 5
82
Solicitation
83
Fraudulent enlistment, appointment, or separation
84
Effecting unlawful enlistment, appointment, or separation
85
Desertion
Art. 86
86
Absence without leave
87
Missing movement
-Design
Art. 87 (neglect); Art. 86
-Neglect
Art. 86
88
Contempt toward officials
89
Disrespect toward a superior commissioned officer
Art. 117
90
Assaulting or willfully disobeying superior commissioned officer
-Striking superior commissioned officer in execution of office
Art. 90 (drawing or lifting up a weapon or offering violence to superior commissioned officer); Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon; assault or assault consummated by battery upon commissioned officer not in the execution of office)
-Drawing or lifting up a weapon or offering violence to superior commissioned officer in execution of office
Art. 128 (simple assault; assault with dangerous weapon; assault upon a commissioned officer not in the execution of office)
-Willfully disobeying lawful order of superior commissioned officer
Art. 92; Art. 89
91
Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer
-Striking or assaulting warrant, noncommissioned, or petty officer in the execution of office
Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault upon warrant, noncommissioned or petty officer not in the execution of office)
-Disobeying a warrant, noncommissioned, or petty officer
Art. 92
-Treating with contempt or being disrespectful in language or deportment toward warrant, noncommissioned, or petty officer in the execution of office
Art. 117
92
Failure to obey order or regulation
93
Cruelty and maltreatment
94
Mutiny and sedition
-Mutiny by creating violence or disturbance
Art. 90; Art. 116; Art. 128 (simple assault)
-Mutiny by refusing to obey orders or perform duties
Art. 90 (willful disobedience of commissioned officer); Art. 91 (willful disobedience of warrant, noncommissioned, or petty officer); Art. 92
-Sedition
Art. 116; Art. 128 (assault)
95
Resistance, flight, breach of arrest, and escape
-Resisting apprehension
Art. 128 (simple assault; assault consummated by battery)
96
Releasing prisoner without proper authority
-Suffering a prisoner to escape through design
Art. 96 (neglect)
97
Unlawful detention
98
Noncompliance with procedural rules
99
Misbehavior before the enemy
-Running away
Art. 85 (desertion with intent to avoid hazardous duty or important service); Art. 86 (absence without authority; going from appointed place of duty)
-Endangering safety of a command, unit, place, ship, or military property
Art. 92
-Casting away arms or ammunition
Art. 108
-Casting away arms or ammunition
Art. 85 (desertion with intent to avoid hazardous duty or important service); Art. 86; Art. 99 (running away)
-Quitting place of duty to plunder or pillage
Art. 86 (going from appointed place of duty)
100
Subordinate compelling surrender
101
Improper use of a countersign
102
Forcing a safeguard
103
Captured or abandoned property
104
Aiding the enemy
105
Misconduct as a prisoner
106
Spies
106a
Espionage
107
False official statement
108
Military property of the United States-sale, loss, damage, destruction, or wrongful disposition
-Willfully damaging military property
Art. 108 (damaging military property through neglect); Art. 109 (willfully damaging non-military property)
-Willfully suffering military property to be damaged
Art. 108 (_through neglect suffering military property to
be damaged_)
-Willfully destroying military property
Art. 108 (through neglect destroying military property; willfully damaging military property; through neglect damaging military property); Art. 109 (willfully destroying non-military property; willfully damaging non-military property)
-Willfully suffering military property to be destroyed
Art. 108 (through neglect suffering military property to be destroyed; willfully suffering military property to be damaged; through neglect suffering military property to be damaged)
-Willfully losing military property
Art. 108 (through neglect losing military property)
-Willfully suffering military property to be lost
Art. 108 (through neglect suffering military property to be lost)
-Willfully suffering military property to be sold
Art. 108 (through neglect suffering military property to be sold)
-Willfully suffering military property to be wrongfully disposed of
Art. 108 (through neglect suffering military property to be wrongfully disposed of in the manner alleged)
109
Property other than military property of the United States-waste, spoilage, or destruction
110
Improper hazarding of vessel
-Willfully and wrongfully hazarding a vessel
Art. 110 (negligently hazarding a vessel)
-Willfully and wrongfully suffering a vessel to be hazarded
Art. 110 (negligently suffering a vessel to be hazarded)
111
Drunken or reckless operation of vehicle, aircraft, or vessel
-Reckless, wanton, or impaired operation or physical control of a vessel
Art. 110
-Drunken operation of a vehicle, vessel, or aircraft while drunk or with a blood or breath alcohol concentration in violation of the described per se standard
Art. 110; Art. 112
112
Drunk on Duty
112a
Wrongful use, possession, etc., of controlled substances
Art. 112a (wrongful possession of controlled substance)
-Wrongful use of controlled substance
Art. 112a (wrongful possession of controlled substance)
-Wrongful manufacture of controlled substance
Art. 112a (wrongful possession of controlled substance)
-Wrongful manufacture of controlled substance
Art. 112a (wrongful possession of controlled substance)
-Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute
Art. 112a (wrongful possession, manufacture, or introduction of controlled substance)
113
Misbehavior of sentinel or lookout
-Drunk on post
Art. 112; Art. 92 (dereliction of duty)
-Sleeping on post
Art. 92 (dereliction of duty)
-Leaving post
Art. 92 (dereliction of duty); Art. 86 (going from appointed place of duty)
114
Dueling
115
Malingering
116
Riot or breach of peace
-Riot
Art. 116 (breach of peace)
117
Provoking speeches or gestures
118
Murder
-_Premeditated murder and murder during certain offense_s
Art. 118 (intent to kill or inflict great bodily harm; act inherently dangerous to another)
-All murders under Article 118
Art. 119 (involuntary manslaughter); Art. 128 (simple assault ; assault consummated by battery; aggravated assault)
-Murder as defined in Article 118(1), (2), and (4)
Art. 119 (voluntary manslaughter)
119
Manslaughter
-Voluntary manslaughter
Art. 119 (involuntary manslaughter); Art. 128 (simple assault; assault consummated by battery; aggravated assault)
-Involuntary manslaughter
Art. 128 (simple assault; assault consummated by battery)
119a
Death or injury of an unborn child
-Killing an unborn child
Art. 119a (injuring an unborn child)
-Intentionally killing an unborn child
Art. 119a (killing an unborn child; injuring an unborn child)
1201
Rape and sexual assault generally
-_ Rape _
-By unlawful force
Art. 120(b)(1)(B); Art. 120(c); Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-By force causing or likely to cause death or grievous bodily harm to any person
Art. 120(a)(1); Art. 120(b)(1)(B); Art. 120(c); Art. 120(d); Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; assault intentionally inflicting grievous bodily harm )
-By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping
Art. 120(b)(1)(B); Art. 120(c); Art. 120(d)
-_By first rendering that other person
unconscious _
Art. 120(b)(2); Art. 120(c); Art. 120(d)
-By administering to that person a drug, intoxicant, or other similar substance
Art. 120(c); Art. 128 (simple assault; assault consummated by battery)
-Sexual Assault
-_By threatening or placing that other
person in fear _
Art. 120(d)
-By causing bodily harm to that other person
Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-_ By making a fraudulent representation that the sexual act serves a professional purpose _
Art. 120(d)
-_Upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that
the sexual act is occurring _
Art. 120(d)
-When the other person is incapable of consenting
Art. 120(d)
-Aggravated sexual contact
-By unlawful force
Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-By force causing or likely to cause death or grievous bodily harm to any person
Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-_By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping
_
Art. 120(d)
-By first rendering that person unconscious
Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-By administering to that person a drug, intoxicant, or other similar substance
Art. 120(d); Art. 128 (simple assault; assault consummated by battery)
-Abusive sexual contact
Art. 128 (simple assault; assault consummated by battery)
120a
Stalking
120b
Rape and sexual assault of a child
-Rape of a child
-Of a child who has not attained the age of 12
Art. 120b(c); Art. 120c
-By force of a child who has attained the age of 12
Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by battery upon a child under 16 years)
-By threatening or placing in fear a child who has attained the age of 12
Art. 120b(b); Art. 120b(c)
-_By rendering unconscious a child who has attained the age of 12
_
Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by battery upon a child under 16 years)
-By administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12
Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by battery upon a child under 16 years)
-Sexual assault of a child
-Sexual assault of a child who has not attained the age of 12 involving contact between penis and vulva or anus or mouth
Art. 120b(c)
-Sexual assault of a child who has attained the age of 12 involving penetration of vulva, anus, or mouth by any part of the body or any object
Art. 120b(c)
120c
Other sexual misconduct
121
Larceny and wrongful appropriation
-Larceny
Art. 121 (wrongful appropriation)
-Larceny of military property
Art. 121 (wrongful appropriation; larceny of property other than military property)
122
Robbery
Art. 121 (larceny; wrongful appropriation); Art. 128 (simple assault; assault consummated by battery: assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm)
123
Forgery
123a
Making, drawing, or uttering check, draft, or order without sufficient funds
124
Maiming
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm)
125
Forcible sodomy; bestiality
-Forcible sodomy
Art. 128 (simple assault; assault consummated by battery)
126
Arson
-Aggravated arson
Art. 126 (simple arson)
127
Extortion
128
Assault
-Assault consummated by a battery
Art. 128 (simple assault)
-Assault upon a commissioned, warrant, noncommissioned, or petty officer
Art. 128 (simple assault; assault consummated by battery)
-Assault upon a sentinel or lookout in the execution of duty
Art. 128 (simple assault; assault consummated by battery)
-Assault consummated by a battery upon a child under 16 years
Art. 128 (simple assault; assault consummated by battery)
-Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm
Art. 128 (simple assault; assault consummated by battery; (when committed upon a child under the age of 16 years; assault consummated by battery upon a child under the age of 16 years))
-Assault in which grievous bodily harm is intentionally inflicted
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon (when committed upon a child under the age of 16 years; assault consummated by battery upon a child under the age of 16 years))
129
Burglary
Art. 130 (housebreaking)
130
Housebreaking
131
Perjury
132
Frauds against the United States
133
Conduct unbecoming an officer and a gentleman
134
Animal abuse
134
Adultery
134
Assault - with intent to commit murder, voluntary manslaughter, rape, robbery, forcible sodomy, arson, burglary, or housebreaking
-Assault with intent to murder
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm); Art. 134 (assault with intent to commit voluntary manslaughter; willful or careless discharge of a firearm)
-Assault with intent to commit voluntary manslaughter
Art. 128 (simple assault; assault consummated by battery assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm); Art. 134 (willful or careless discharge of a firearm)
-Assault with intent to commit rape or forcible sodomy
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon)
-Assault with intent to commit burglary
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon); Art. 134 (assault with intent to commit housebreaking)
-Assault with intent to commit robbery, arson, or housebreaking
Art. 128 (simple assault; assault consummated by battery; assault with a dangerous weapon)__
134
Bigamy
134
Bribery and graft
-Bribery
Art. 134 (graft)__
134
Burning with intent to defraud
134
Check, worthless, making and uttering - by dishonorably failing to maintain funds
134
Child endangerment
-Child Endangerment by Design
Art. 134 (child endangerment by culpable negligence)
134
Child pornography
-Possessing child pornography with intent to distribute
Art. 134 (possessing child pornography)
-Distributing child pornography
Art. 134 (possessing child pornography; possessing child pornography with intent to distribute)
-Producing child pornography
Art. 134 (possessing child pornography)
134
Cohabitation, wrongful
134
Correctional custody - offenses against
134
Debt, dishonorably failing to pay
Disloyal statements
134
Disorderly conduct, drunkenness
134
Drinking liquor with prisoner
134
Drunk prisoner
134
Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug
134
False or unauthorized pass offenses
-Wrongful use or possession of false or unauthorized military or official pass, permit, discharge certificate, or identification card, with the intent to defraud or deceive
Art. 134 (same offenses, except without the intent to defraud or deceive)
134
False pretenses, obtaining services under
134
False swearing
134
Firearm, discharging - through negligence
134
Firearm, discharging - willfully, under such circumstances as to endanger human life
Art. 134 (firearm, discharging - through negligence)
134
Fleeing scene of accident
134
Fraternization
134
Gambling with a subordinate
134
Homicide, negligent
134
Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official
134
Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official
134
Indecent language
Art. 117 (provoking speeches)
134
Kidnapping
Mail: taking, opening, secreting, destroying, or stealing
Art. 121
134
Mails: depositing or causing to be deposited obscene matters in
134
Misprision of serious offense
134
Obstructing justice
134
Wrongful interference with an adverse administrative proceeding
134
Pandering and prostitution
134
Parole, violation of
134
Perjury: subornation of
134
Public record: altering, concealing, removing, mutilating, obliterating, or destroying
134
Quarantine: medical, breaking
Art. 134 (breaking restriction)
134
Reckless endangerment
134
Restriction, breaking
134
Seizure: destruction, removal, or disposal of property to prevent
134
Self-injury without intent to avoid service
134
Sentinel or lookout: offenses against or by
134
Sentinel or lookout: offenses against or by
134
Soliciting another to commit an offense
134
Stolen property: knowingly receiving, buying, concealing
134
Straggling
Testify: wrongful refusal
Threat or hoax designed or intended to cause panic or public fear
Art. 134 (communicating a threat); Art. 128 (assault)
Threat, communicating
Unlawful entry
Weapon: concealed, carrying
Wearing unauthorized insignia, decoration, badge, ribbon, device or lapel button
This chart only includes the 2012 version of Art. 120. See Appendix 27 and 28 for prior versions.
BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS NOT REQUIRED
If a verbatim record is not required
(see R.C.M. 1103(b)(2)(C) and (c)(2)), a summarized report of testimony,
objections, and other proceedings is permitted. In the event of an acquittal
of all charges and specifications, or termination of the proceedings prior
to findings by withdrawal, mistrial, dismissal, or were terminated after findings by approval of an administrative discharge in lieu of court-martial, the record may be further
summarized and need only contain sufficient information to establish lawful
jurisdiction over the accused and the offenses. See R.C.M.
1103(e).
This appendix is to be used as a general guide;
the actual record may depart from it as appropriate. The manner of summarizing
several items of procedure is shown in Appendix 14 a.
Note. All pen and ink changes to the transcribed record
of trial shall be initialed. All pages in the transcribed record of trial
shall be numbered consecutively, beginning with "1." The page
number shall be centered on the page 1/2 inch from the bottom. A margin
of 1 1/2 inches, or more as necessary, will be left at the top to permit
binding. A one-inch margin will be left on the bottom of the page and on
the left side of each page. The left margin will be increased as necessary
in the event that left-hand binding is used rather than top binding. If
left-hand binding is used, the top margin should be decreased to one-inch.
Words on the margins of this appendix are not part of the form of record.
All records of trial should begin as follows:
Title
Of
(Name-last, first, middle initial) (SSN) (Rank or grade)
(Unit/Command Name) (Branch of Service) (Station or ship)
By
COURT-MARTIAL
Convened by
(Title of convening authority)
(Command of convening authority)
Tried at
on
(Place or places of trial) (Date
or dates of trial)
Copies of record
copy(ies) of record were furnished the accused as
per attached certificate or receipt. copy(ies)
of record forwarded herewith.
Receipt for record
I hereby acknowledge receipt of a copy of the above-described record
of trial, delivered to me at , this day of
, 2.
(Signature of accused or defense counsel)
(Typed name of accused or defense counsel)
Note. See R.C.M. 1104(b)(1) concerning
service of record on the accused or defense counsel.
, 2
(Place/Location)(Date)
Certificate in lieu of receipt
I certify that on this day delivery of a copy of the above-described
record of trial was made to the accused,
at ,
(Name of accused) (Place of delivery)
by
(Means of effecting delivery, i.e., mail messenger, etc.)
and that the receipt of the accused had
not been received on the date this record was forwarded to the convening
authority. The receipt of the accused will be forwarded as soon as it is
received.
(Signature of trial counsel)
(Typed name of trial counsel)
Note. If accused's defense counsel receives the record, the trial counsel
must attach an explanation to the record. See R.C.M. 1104(b)(1)(C).
The following format may be used:
The accused's defense counsel was served the accused's copy of the
record because (the accused so requested in a written request, which is attached)
(the accused so requested on the record at the court-martial) (the accused
was transferred to [location] (the accused is absent without
authority) ().
(Signature of trial counsel)
(Name
of trial counsel)
Note. If the accused cannot be served and has no counsel to receive
the record, an explanation for failure to serve the record will be attached
to the record. See R.C.M. 1104(b)(l)(C). The following format
may be used:
The accused was not served a copy of this record because the accused
(is absent without authority) (), and the accused has no
defense counsel to receive the record because (defense counsel has been
excused under R.C.M. 505(d)(2)(B)) ().
(Signature of trial counsel)
(Typed name of trial counsel)
Article 39(a) session
PROCEEDINGS OF (GENERAL) (SPECIAL) COURT-MARTIAL ARTICLE
39(a) SESSION.
Note. The summarized record of an Article 39(a) session should
proceed as set forth in this section. If trial was before a special court-martial without a military
judge, there will have been no Article 39(a) session. However, generally
the same sequence will be followed except as noted below. In special courts-martial
without a military judge, substitute "president" for "military
judge" when it appears, and "court-martial" for "Article
39(a) session."
The military judge called the Article 39(a) session to order (at) (on board)
, at hours, , 2, pursuant to the following orders:
Convening orders
Note. Here insert a copy of the convening orders and copies of any
amending orders. Any written orders detailing the military judge and counsel
will be attached. Any request of an enlisted accused for enlisted members
will be inserted immediately following the convening orders, together with
any declaration of the nonavailability of such enlisted persons. Any written
request for trial by the military judge alone will also be inserted at this
point. See R.C.M. 503(a)(2), and 903.
Time of session
Note. The reporter should note and record the time and date of the
beginning and ending of each session of the court-martial. For example:
The session was called to order at hours, , 2.
The session (adjourned)(recessed) at hours, , 2.
Military judge, counsel members present and absent
Note. Here list the names of the military judge, counsel, accused, and
members if present.
Note. The names of the members need not be listed if members are not
present. The absence of other detailed persons should be noted. The record
should include any reasons given for the absence of detailed persons. If
the accused was questioned about the absence of any detailed defense counsel,
this inquiry should be summarized at the point in the record at which such
inquiry occurred.
Accused and defense counsel present
The accused and the following (detailed defense counsel and associate
or assistant defense counsel) (civilian or individual military counsel)
were present:
Swearing reporter;
interpreter
The following detailed (reporter) (and) (interpreter) (was) (were)
(had previously been) sworn:
Note. Applicable only when a reporter or interpreter is used.
Qualification of trial counsel
The trial counsel announced the legal qualifications and status
as to oaths of all members of the prosecution (and that (he) (she) (they)
had been detailed by ).
Prior participation of trial counsel
The trial counsel further stated that no member of the prosecution
had acted in a manner which might tend to disqualify (him) (her) except
as indicated below.
Note. If a member of the prosecution is unqualified or disqualified
under R.C.M. 502(d) that will be shown, together with the action taken under
R.C.M. 901(d). Any inquiry or hearing into the matter should be summarized.
Qualification of defense counsel
The detailed defense counsel announced the legal qualifications
and status as to oaths of all members of the defense (and) that he (and ) had been detailed by ).
Note. Legal qualifications of any civilian or individual military counsel
will be shown.
Prior participation of defense counsel
The defense counsel stated that no member of the defense had acted
in a manner which might tend to disqualify (him) (her) except as indicated
below.
Note. If a member of the defense is unqualified or disqualified under
R.C.M. 502(d), the record will show that fact and the action taken under
R.C.M. 901(d). Any inquiry or hearing into the matter should be summarized.
Inquiry concerning Article 38(b)
The military judge informed the accused of the rights concerning
counsel as set forth in Article 38(b) and R.C.M. 901(d). The accused
responded that he/she understood the rights with respect to counsel, and
that he/she chose to be defended by .
Personnel sworn
The military judge and the personnel of the prosecution and defense
who were not previously sworn in accordance with Article 42(a) were sworn.
The prosecution and each accused were extended the right to challenge the
military judge for cause.
Challenge: military judge
The military judge was (not) challenged for cause (by ) (on the ground that ).
Note. The record should show the grounds for the challenge, a summary
of evidence presented, if any, and the action taken.
Request for trial by military judge alone
The military judge ascertained that the accused had been advised
of his right to request trial by the military judge alone and that the accused
did (not) desire to submit such a request.
Note. If the accused requests trial by the military judge alone, any
written request will be included in the record. The action on the request,
whether oral or written, should be indicated as follows:
After ascertaining that the accused had consulted with defense counsel
and had been informed of the identity of the military judge and of the right
to trial by members, the military judge (approved) (disapproved) the accused's
request for trial by military judge alone.
Note. If the military judge announced at this point that the court-martial
was assembled, the record should so reflect. If assembly was announced at
a different point it should be so shown in the record.
Note. If the military judge disapproved the accused's request, this
fact and any reasons given for the disapproval should be summarized.
Note. If the accused did not submit, or the military judge disapproved,
a request for trial by military judge alone, and if the accused is an enlisted
person, the following should be included:
Request for enlisted members
The trial counsel announced that the accused had (not) made a request
in writing that the membership of the court-martial include enlisted persons.
The defense counsel announced that the accused had been advised of the right
to request enlisted members and that the accused did (not) want to request
enlisted members.
Note. If the accused did request enlisted members, the written request
will be included in the record.
Convening authority
identified
(Name, rank, and organization of convening authority)
convened the court-martial and referred the charges and specifications to
it.
Note. In a special court-martial without a military judge, ordinarily
the examination and challenges of members would occur at this point. The
format used below for examination and challenges may be inserted here as
appropriate.
Arraignment
The accused was arraigned on the following charges and specifications:
Note. Here insert the original charge sheet. If there are not enough
copies of the charge sheet to insert in each copy of the record, copy verbatim
from the charge sheet the charges and specifications, and the name of the
accuser, the affidavit, and the reference to the court-martial for trial.
Motions
Note. If any motions were made at arraignment, the substance of the
motion, a summary of any evidence presented concerning it, and the military
judge's ruling will be included in the record. Motions or objections made
at other times in the court-martial should be similarly treated at a point
in the record corresponding to when they were raised.
Pleas
The accused pleaded as follows:
To all the Specifications
and Charges: (Not Guilty) (Guilty)
To Specification 1 of Charge I: (Not
Guilty) (Guilty)
To Specification 2 of Charge I: (Not Guilty) (Guilty)
To
Charge I: (Not Guilty) (Guilty)
etc.
Note. If the accused pleads guilty the plea inquiry should be summarized.
The following may be used as a guide.
Guilty plea inquiry
The military judge inquired into the providence of the accused's
pleas of guilty. The military judge informed the accused of: the right to
counsel [if the accused had no counsel]; of the right to
plead not guilty and to be tried by court-martial and that at such court-martial
the accused would have the right to confront and cross-examine witnesses
against the accused and the right against self-incrimination; that by pleading
guilty the accused waived the rights to trial of the offense(s), to confront
and cross-examine witnesses, and against self-incrimination; and that the
military judge would question the accused, under oath, about the offense(s)
to which the accused pleaded guilty and that if the accused answered those
questions under oath, on the record, and in the presence of counsel, the
accused's answers could be used against the accused in a prosecution for
perjury or false statement. The accused stated that he/she understood these
rights. The military judge questioned the accused and determined that the
plea(s) of guilty (was) (were) voluntary and not the result of force or
threats or of promises (other than those in the pretrial agreement). The military
judge informed the accused of the elements of the offense(s) and the maximum
punishment which could be imposed for (this) (these) offense(s). The accused
stated that he/she understood.
The military judge asked the accused about the offense(s) to which the accused pleaded guilty. Under oath the accused stated as follows:
Note. Here summarize the accused's description of the offense(s).
The military judge ascertained that there was (not) a pretrial
agreement in the case.
Note. If there was a pretrial agreement, the military judges's inquiry
into it should be summarized. The following may be used as a guide:
The pretrial agreement was marked as Appellate Exhibit(s) . (The military judge did not examine Appellate Exhibit at this time.) The military judge inquired and ensured that the
accused understood the agreement and that the parties agreed to its terms.
Note. If there was a question or dispute as to the meaning of any term
in the agreement, the resolution of that matter should be described.
Note. If the accused entered a conditional guilty plea (see R.C.M. 910(a)(2)), this will be included in the record.
The military judge found the accused's pleas of guilty provident
and accepted them.
Note. If findings were entered (see R.C.M. 910(g))
on any charges and specifications at this point, the record should so reflect. _
See_ FINDINGS below for format.
Note. If the accused pleaded not guilty to any charge(s) and specification(s)
which were not dismissed or withdrawn, in trial before military judge alone,
proceed with PRESENTATION OF PROSECUTION CASE. If the accused pleaded guilty
to all charge(s) and specification(s) in trial before military judge alone,
proceed with SENTENCING PROCEEDINGS below. If trial was before members proceed
with INITIAL SESSION WITH MEMBERS below.
Note. If the court-martial recessed, closed, or adjourned, or if an
Article 39(a) session terminated and a session of the court-martial begins,
the record should indicate the time of the recess, closing, or adjournment,
and the time of reopening, using the following formats:
For example:
The Article 39(a) session terminated at hours, .
The court-martial (recessed) (adjourned) (closed) at
hours, .
Note. Whenever the court-martial reopens after a recess or adjournment,
or after being closed, the record should indicate whether any party, member,
or the military judge previously present was absent, or, if not previously
present, was now present. Persons present for the first time should be identified
by name. For example:
The military judge and all parties previously present were again
present. (The following members were also present .)
The members were (not) present.
The military judge and all parties previously
present were again present, except , detailed defense
counsel who had been excused by . , certified in accordance with Article 27(b) was present as individual
military counsel, and was previously sworn.
Note. Except in a special court-martial without a military judge, ordinarily
members will be first present at this point. In a special court-martial without
a military judge, ordinarily the members will be sworn and examined immediately
after the accused has been afforded the opportunity to request enlisted
members. In such cases, the following matters should be inserted at the appropriate
point in the record.
Members sworn
The members of the court-martial were sworn in accordance with R.C.M.
Note. If the military judge announced at this point that the court-martial
was assembled, the record should so reflect. If assembly was announced at
a different point, it should be so shown in the record.
Note. If the military judge gave preliminary instructions to members,
this should be stated at the point at which they were given.
Preliminary instructions
The military judge instructed the members concerning their duties,
the conduct of the proceedings, ().
Note. If counsel examined the members concerning their qualifications,
the record should so state. If any member was challenged for cause, the
grounds for challenge should he summarized. In addition, when a challenge
is denied, the challenged member's statements concerning the matter in question
should be summarized in the record. For example:
Trial and defense counsel examined the members concerning their
qualifications. , member, was questioned concerning , and stated, under oath as follows:
The offense charged is, in my opinion, very serious, and worthy of a punitive discharge.
My mind is not made up. I would consider all the evidence and the instructions
of the military judge before deciding on an appropriate sentence.
The defense challenged for cause. The challenge was
denied. Neither side had any further challenges for cause. The trial counsel
challenged peremptorily.
The defense counsel challenged peremptorily (and stated that it would
have challenged another member had the challenge of for
cause been sustained).
and were excused and withdrew from the courtroom.
Note. If any part of the examination of members is done outside the
presence of other members, this should be stated in the record. If challenges
are made at an Article 39(a) session this should be stated in the record.
Note. If the accused was arraigned at an Article 39(a) session, ordinarily
the military judge will have announced at this point to the members how the
accused pleaded to the charges and specifications, and the record should
so state. If the pleas were mixed and the members were not made aware at
this point of the offense(s) to which the accused pleaded guilty the record
should so state.
Announcement of pleas
The military judge informed the members that the accused had entered
pleas of (Not Guilty) (Guilty) to (the) (all) Charge(s) and Specification(s)
().
Opening statement
The trial counsel made (an) (no) opening statement. The defense
counsel made (an) (no) opening statement at this time.
Note. The record will contain a summary of the testimony presented.
An example of the manner in which testimony may be summarized follows:
Testimony
The following witnesses for the prosecution were sworn and testified
in substance as follows:
(name of witness, rank, and organization)
I know the accused, , who is in the military
service and a member of my company. We both sleep in the same barracks.
When I went to bed on the night of October 7, 1984, I put my wallet under
my pillow. The wallet had $7.00 in it; a $5.00 bill and two $1.00 bills.
Sometime during the night something woke me up but I turned over and went
to sleep again. When I woke up the next morning, my wallet was gone.
I don't know the serial numbers on any of the bills. One of the
$1.00 bills was patched together with scotch tape and one of the fellows
told me that the accused had used a $1.00 bill just like that in a poker
game the day after my wallet was missing.
Objection and ruling
Upon objection by the defense, so much of the answer of the witness
as pertained to what he had been told was stricken.
Stipulation
The trial counsel offered in evidence a stipulation of fact entered
into between the trial counsel, defense counsel, and the accused. The military
judge ascertained that the accused understood and consented to the stipulation.
It was admitted as Prosecution Exhibit 1.
Defense opening statement
The defense counsel made (an) (no) opening statement. The following
witnesses for the defense were sworn and testified in substance as follows:
Rebuttal or surrebuttal
Witnesses called by the
military judge or the
court-martial
Closing argument
The trial counsel made (an) (no) argument.
The defense counsel made (an) (no) argument.
The trial counsel made (an) (no) argument in rebuttal.
Instructions
The military judge instructed the members in accordance with R.C.M.
920, including the elements of each offense, (and of the lesser included
offense(s) of ) (the defense(s) of ,) (the following evidentiary matters,) the presumption of innocence,
reasonable doubt, and burden of proof as required by Article 51(c), and
on the procedures for voting on the findings worksheet. (The members were
given Appellate Exhibit , findings worksheet.) (The
members were given Appellate Exhibit , a copy of
the military judge's instructions.) (There were no objections to the instructions
or requests for additional instructions.)
Note. If any party requested instructions which were not given, or
objected to the instructions given, these matters should be summarized in the record.
Closing the court-martial
Reopening the court-martial
The court-martial closed at hours, , 2.
The court-martial reopened at hours, , 2.
Note. If the military judge examined a findings worksheet and gave additional
instructions, these should be summarized.
Findings by members
The president announced that the accused was found:
Of
all Charges and Specifications: (Not Guilty) (Guilty)
Of Specification
1 of Charge I: (Not Guilty) (Guilty)
Of Specification 2 of Charge I:
(Not Guilty) (Guilty)
Of Charge I: (Not Guilty) (Guilty)
Of the
Specification of Charge II: Not Guilty
Of Charge II: Not Guilty
etc.
Findings by military judge alone
Note. In trial by the military judge alone, there would be no instructions
given, but the military judge may make general and special findings. Any
request for special findings should be summarized, and if submitted in writing,
the request should be attached as an Appellate Exhibit. The general findings
must be announced in open session with all parties present and may be recorded
in the record in the following form, together with any special findings
announced at that time:
Announcement
The military judge announced the following general (and special)
findings (and directed that be appended to the record
as Appellate Exhibit ) (and stated that the
special findings would be furnished to the reporter prior to authentication
for insertion in the record as Appellate Exhibit ):
Of
all the Specifications and Charges: Guilty
or
Of the Specification
of Charge I: Guilty
Of Charge I: Guilty
Of the Specification
of Charge II: Not Guilty
Of Charge II: Not Guilty
Note. All general findings should be recorded as indicated above. Special
findings delivered orally should be summarized. Any written findings, opinion
or memorandum of decision should be appended to the record as an appellate
exhibit and copies furnished to counsel for both sides.
Note. If the accused was acquitted of all charges and specifications,
proceed to adjournment.
Data as to service
The trial counsel presented the data as to pay, service, and restraint
of the accused as shown on the charge sheet. There were no objections to
the data.
Introduction of exhibits
The trial counsel offered Prosecution Exhibits , , and for identification, matters
from the accused's personnel records. (The defense did not object.) (The
defense objected to Prosecution Exhibit for identification
on grounds that it was not properly authenticated.) (The objection was (overruled)
(sustained).)
(Prosecution Exhibits , , and were (not) received in evidence.)
Note. If the prosecution presented evidence in aggravation or of the
accused's rehabilitative potential, this evidence should be summarized here,
in the same way as evidence on the merits, above.
Inquiry of accused
The military judge informed the accused of the right to present
matters in extenuation and mitigation, including the right to make a sworn
or an unsworn statement or to remain silent. In response to the military
judge the accused stated that he/she chose to (testify) (make an unsworn
statement) (remain silent).
Note. If the defense calls witnesses in extenuation and mitigation,
the testimony should be summarized in the record. If the accused makes an
oral unsworn statement, personally or through counsel, this should be shown
and the matters contained in the statement summarized.
Argument
The prosecution made (an) (no) argument on sentence. The defense
made (an) (no) argument on sentence.
Instructions
The military judge instructed the members that the maximum punishment
which could be adjudged for the offense(s) of which the accused had been
found guilty was: . The military judge also instructed
the members concerning the procedures for voting, the responsibility of the
members, and the matters the members should consider in accordance with R.C.M.
1005(e). (The members were given Appellate Exhibit ,
a sentence worksheet.) (The members were given Appellate Exhibit , a copy of the military judge's instructions.) (There were no
objections to the instructions or requests for additional instructions.)
Note. If any party requested instructions which were not given, or
objected to the instructions given, these matters should be summarized in
the record.
Note. If, in trial before military judge alone, the military judge
announces what the military judge considers to be the maximum punishment,
the stated maximum should be recorded.
Closing the court-martial
Reopening the court-martial
The court-martial closed at hours, , 2.
The court-martial reopened at hours, , 2.
Note. If the military judge examined a sentencing worksheet and gave
additional instructions, these should be summarized.
Announcement of sentence
The (military judge) (president) announced the following sentence: .
Note. If trial was by military judge alone and there was a pretrial
agreement, ordinarily the military judge will examine any sentence limitation
after announcing the sentence. Any inquiry conducted at this point should
be summarized.
Pretrial agreement
The military judge examined Appellate Exhibit .
The military judge stated that, based on the sentence adjudged, the convening
authority (was obligated, under the agreement to approve no sentence in
excess of ) (could approve the sentence adjudged
if the convening authority so elected) ().
Note. The military judge must inform the accused of the accused's post-trial
and appellate rights. See R.C.M. 1010. The following is
an example:
Advice concerning post-trial and appellate rights
The military judge informed the accused of: the right to submit
matters to the convening authority to consider before taking action; (the
right to have the case examined in the Office of The Judge Advocate General
and the effect of waiver or withdrawal of such right;) the right to apply
for relief from The Judge Advocate General; and the right to the advice
and assistance of counsel in the exercise of the foregoing rights or any
decision to waive them.
Adjournment
The court-martial adjourned at hours, 2.
Note. When the defense counsel has examined the record of trial before
authentication the following form is appropriate:
"I have examined the record of trial in the foregoing case."
(Signature of defense counsel)
(Typed name and rank of defense counsel)
Note. If the defense counsel was not given the opportunity to examine
the record before authentication, the reasons should be attached to the
record. _ See_ R.C.M. 1103(i)(1)(B).
Military judge with members
judge
(Signature of military judge)
(Typed name and rank of military judge)
If necessary, substitute one of the following: [or
(LTJG) (1LT) (), Trial Counsel, because of (death) (disability)
(absence) of the military judge.] [(LCDR) (Major) (), a member in lieu of the military judge and the trial
counsel because of (death) (disability) (absence) of the military judge and
of (death) (disability) (absence) of the trial counsel.]
Military judge alone
judge
(Signature of military judge)
(Typed name and rank of military judge)
If necessary, substitute one of the following: [or (LTJG) (1LT) (), Trial Counsel, because of (death) (disability) (absence)
of the military judge.] [(the court reporter () in lieu of the military judge and trial counsel because of (death) (disability) (absence)
of the trial counsel.]
President
Note. If the rank of any person authenticating the record has changed
since the court-martial, the current rank should be indicated, followed
by "formerly ."
See R.C.M. 1103(b)(2)(D)
Note. Following the end of the transcript of the proceedings, insert
any exhibits which were received in evidence, or, with the permission of
the military judge, copies, photographs, or descriptions of any exhibits
which were received in evidence and any appellate exhibits.
Note. Attach to the record the matters listed in R.C.M. 1103(b)(3).
Note. See Appendix 14_f_
BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS REQUIRED
The following guidelines apply to the preparation of all records
of trial by general and special courts-martial when a verbatim record of
trial is required by Rule for Courts-Martial 1103(b)(2)(B) and (c)(1).
All transcription will be completed only on one side of 8 1/2 x
11 inch paper. Use 15-pound or other high quality paper. Red-lined margins
and other legal formats, such as numbered lines, are acceptable so long
as they otherwise comport with the guidelines set forth herein.
A margin of 1 1/2 inches, or more as necessary, will be left at
the top to permit binding. A one inch margin will be left on the bottom
of the page and on the left side of each page. The left margin will be
increased as necessary in the event that left hand binding is used rather
than top binding. If left-hand binding is used, the top margin should be
decreased to 1 inch.
Use 10-pitch (pica) on typewriters and 12 point type on computers.
Only Courier, Times-Roman, or Times-New Roman fonts may be used. Do not
use cursive, script, or italic fonts, except when appropriate in specific
situations (e.g., citation). Use bold print for initial
identification of the members, military judge, court reporter, and the parties
to the trial. Certain standard stock entries (SSEs) will be in bold print
within verbatim records of trial, as reflected in this appendix's Guide for
Preparation of Trial (i.e., calling a witness, stage of examination, and
questions by counsel, members or the military judge.
Double-space text, returning to the left margin on second and subsequent
lines, with the exception of pleas, findings, and sentence, which should
be single spaced, indented, and in bold print. Indent the elements of separate
offenses in guilty plea cases.
Use left justification only with the exception of pleas, findings,
and sentence, which may be justified both left and right.
All pages in the transcribed record of trial shall be numbered
consecutively, beginning with "1". The page number shall be
centered on the page 1/2 inch from the bottom.
Use preceding page number plus either an alphanumeric letter after
the corresponding whole numbered page (e.g. "19a")
or a decimal and an Arabic number after the corresponding whole numbered
page (e.g. "19.1"). Annotate the bottom of
the preceding page to reflect the following inserted page (e.g. "next
page 19a" or "next page 19.1"). Be consistent throughout
the record of trial using either the alphanumeric or decimal system. Annotate
the return to consecutive numbering at the bottom of the last inserted page
(e.g. "next page 20").
If a page number is omitted, but no page is actually missing from
the transcript, note the missing page at the bottom of the page preceding
the missing page number (e.g.: "there is no page 22;
next page 23").
All records of trial forwarded for review under UCMJ Articles 66
and 69(a) shall be printed in such a manner as to produce a letter quality
manuscript-a clear, solid, black imprint. All pen and ink changes
to the transcribed record of trial shall be initialed.
The contents of a record of trial, including allied papers accompanying
the record, are set forth in R.C.M. 1103(b)(2)(B), (2)(D), and (3). To the
extent applicable, the original record of trial shall contain signed originals
of pertinent documents. Absence of an original document will be explained,
and a certified true copy or signed duplicate original copy inserted in the
record of trial. Arrangement of the contents of the record shall be as
set forth on DD Form 490, with heavy stock dividers used to separate major
components of the record as follows:
The
front cover will be followed by: (1) any orders transferring the accused
to a confinement facility or paperwork pertaining to excess/appellate leave; (2) appellate rights statement and the accused's election as to appellate counsel or any waiver thereof; (3) DD Form 494, "Court-Martial
Data Sheet", if any; (4) any briefs of counsel submitted after
trial; (5) court-martial orders promulgating the result of trial; (6) proof
of service on the defense counsel of the Staff Judge Advocate's recommendation
and any response to the recommendation (if the defense response to the recommendation
is combined into one document with the matters submitted by the accused pursuant
to R.C.M. 1105, then the document should be placed in the record of trial
as if it were solely matters submitted by the accused pursuant to R.C.M.
1105); (7) either proof of service on the accused of the Staff Judge
Advocate's recommendation or a statement explaining why the accused was
not served personally; (8) signed review of the Staff Judge Advocate
including any addenda and attached clemency matters; (9) matters submitted
by the accused pursuant to R.C.M. 1105; (10) any request for deferment
of post-trial confinement and action thereon; (11) any request for deferment/waiver
of automatic forfeitures and any action thereon; (12) any request for
deferment of reduction in grade and any action thereon.
pursuant to Article 32,
if any, and all related exhibits
and attachments. The original, signed investigation will be placed in the
original copy of the record of trial.
These
papers should include: (1) advice of the Staff Judge Advocate or legal
officer; (2) requests by counsel and action of the convening authority
taken thereon; (3) any other papers, endorsements, investigations which
accompanied the charges when referred for trial; (4) record of any former
trial.
in the following order: (1) errata sheet; (2) index sheet with reverse side containing receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt;
_Note.
_ The preprinted index may be inadequate to properly reflect the
proceedings, witnesses, and exhibits. Court reporters should liberally expand
the index and use additional sheets as necessary. Special attention should
be paid to noting the pages at which exhibits are offered and accepted/rejected,
to include annotating those page numbers on the bottom of an exhibit, as
appropriate.
convening and all amending orders;
any written orders detailing the military judge or counsel; (5) request
for trial by military judge alone if not marked as an appellate exhibit;
exhibit; (7) verbatim transcript of the proceedings of the court, including
all Article 39(a) sessions and original DD Form 458, "Charge Sheet";
authentication sheet followed by Certificate of Correction, if any;
action of convening authority and, if appropriate, action of officer
exercising general court-martial jurisdiction.
Note. Any necessary assumption of command orders should be included
in the record of trial.
Post-trial
sessions will be authenticated and served in accordance with R.C.M. 1103,
and are part of the record of trial. Page numbering should continue in sequence
from the end of the transcript of the original proceedings, and will be
separately authenticated if the initial proceedings have been previously
authenticated. Additional exhibits should be lettered or numbered in sequence,
following those already marked/admitted.
[The page(s) at which an exhibit is offered and admitted should
be noted at the bottom of the exhibit, as appropriate, as well as noting
those pages on the DD Form 490.]
[The page(s) at which an exhibit is offered and admitted should
be noted at the bottom of the exhibit, as appropriate, as well as noting
those pages on the DD Form 490.]
admitted into evidence.
[The page(s) at which
an exhibit is offered and rejected should be noted at the bottom of the exhibit,
as appropriate, as well as noting those pages on the DD Form 490.]
into evidence.
[The page(s) at which an exhibit
is offered and rejected should be noted at the bottom of the exhibit, as
appropriate, as well as noting those pages on the DD Form 490.]
[The
page(s) at which an exhibit is marked should be noted at the bottom of the
exhibit, as appropriate, as well as noting those pages on the DD Form 490.]
of suspension.
The foregoing bullets will be separated by the use of heavy stock
dividers, colored, and labeled with gummed labels.
Volumes of the record will be bound at the top with metal or plastic
fasteners. Top or left-side binding is acceptable with sufficient adjustment
to the top or left margin. Volumes shall be bound to withstand repeated
handling, utilizing DD Form 490. **Do not sew or stack fasteners together
in gangs to bind thick volumes.**
Divide ROTs that are over 1.5 inches thick into separate volumes.
Make the first volume of a multi-volume record an inch thick or smaller.
This will allow for inclusion of the SJA recommendation, clemency matters,
and other post-trial documents. Limit subsequent volumes to 1.5 inches thick,
unless dividing them requires assembling an additional volume smaller than .5 inches thick. If the transcript is split into two or more volumes, indicate
on the front cover which pages of the transcript are in which volume.
(e.g.: "Volume 1 of 4, Transcript, pages 1-300"). Number each volume
of the ROT as follows: "Volume 1 of ."
In the upper right-hand corner of the DD Form 490, label the ROT to reflect
which copy it is, i.e., "ORIGINAL," "ACCUSED," et
cetera.
Words on the margins of this appendix are not part
of the form of record. As a general rule, all proceedings in the case should be recorded verbatim. See R.C.M. 1103. Following this appendix does not necessarily produce a complete record of trial. It
is to be used by the reporter and trial counsel as a guide in the preparation
of the completed record of trial in all general and special court-martial
cases in which a verbatim record is required.
Of
(Name-last, first, middle initial)(SSN) (Rank or grade)
(Unit/Command Name)(Branch of Service) (Station or ship)
By
COURT-MARTIAL
Convened by
(Title of convening authority)
(Command of convening authority)
Tried at
on
(Place or places of trial)
(Date or dates of trial)
Note. The title should be followed by an index. The form
and content of this index will be as prescribed in publications of the Secretary
concerned.
However, it should cover important phases of
the trial such as: introductory matters, arraignment, motions, pleas, providence
inquiry, pretrial agreement inquiry, prosecution case-in-chief, defense case,
prosecution case in rebuttal, trial counsel argument, defense counsel argument,
instructions, findings, allocution rights, prosecution matters in aggravation,
defense sentencing case, prosecution rebuttal, trial counsel argument, defense
counsel argument, sentencing instructions, appellate rights, sentencing, and
review of the sentencing terms of any pretrial agreement.
Moreover,
the index should also reflect all exhibits (prosecution, defense, and appellate)
whether offered/accepted into evidence or not.
Copies of record
A copy of the record was furnished to the accused as per attached certificate or receipt.
copy(ies)
of record forwarded herewith.
Receipt for record
I hereby acknowledge receipt of a copy of the above-described record
of trial, delivered to me at this day of , .
(Signature of accused)
(Name
of accused)
,
(Place)(Date)
Certificate in lieu of receipt
I certify that on this day delivery of a copy of the above-described
record of trial was made to the accused,
, at
(Name of accused)
, by and that the receipt of the accused
(Place of delivery) (Means of Delivery)
had not been received on the date this record was forwarded
to the convening authority. The receipt of the accused will be forwarded
as soon as it is received.
(Signature of trial counsel)
(Name
of trial counsel)
Note. If the accused's defense counsel receives the record, the trial
counsel must attach an explanation to the record. See R.C.M.
1104(b)(1)(C). The following format may be used:
The accused's defense counsel was served the accused's copy of the
record because (the accused so requested in a written request, which is
attached) (the accused so requested on the record at the court-martial) (the
accused was transferred to ) (the accused is absent
without authority) ().
(Signature of trial counsel)
(Name of trial counsel)
Note. If the accused cannot be served and has no counsel to receive
the record, an explanation for failure to serve the record will be attached
to the record. _ See_ R.C.M. 1104(b)(1)(C). The following
format may be used:
The accused was not served a copy of this record because the accused
(is absent without authority) (). Accused has no
defense counsel to receive the record because (defense counsel has been excused
under R.C.M. 505(d)(2)(B)) ().
(Signature of trial counsel)
(Name of trial counsel)
Note. While entries in this guide below are single-spaced, all records
are to be double-spaced with the exception of the pleas, findings, and
sentence.
[The military judge called the Article 39(a) session to
order at/on board
at, hours, ,
pursuant to the following orders:]
[Court-Martial
Convening Order Number , , dated .] (command
that issued the order)
[END OF PAGE]
Note. Here insert a copy of the orders convening the
court-martial and copies of any amending orders. Copies of any written orders
detailing the military judge and counsel will be inserted here._ See
_ R.C.M. 503(b) and (c). Any request of an enlisted accused for enlisted
court members will be inserted immediately following the convening orders,
together with any declaration of the nonavailability of such enlisted persons
unless marked as an appellate exhibit. See R.C.M.503(a)(2),
statement that a military judge could not be obtained (R.C.M. 201(f)(2)(B)(ii))
will be inserted at this point unless marked as an appellate exhibit.
MJ: This Article 39(a) session is called to order.
TC: This court-martial is convened by ....
Note. The reporter records all the proceedings verbatim
from the time the military judge calls the court to order. Thereafter, the
reporter will use only standard stock entries, reporter's notes, or gestures.
SSEs, Reporter's Notes and Gestures
Note. SSEs, reporter's notes, and gestures (non-verbatim
observations) will be placed in brackets, with the exception of SSEs identifying
witnesses, stages of examination, and individual voir dire.
Paragraphing
Note. The court reporter shall utilize proper paragraphing
techniques (i.e., a new line of thought starts a new paragraph) when typing
long narratives, such as the military judge's instructions, counsel arguments,
and lengthy "Q and A." Additionally, start a new paragraph for each separate
element in a list; i.e., elements of an offense, legal definitions, accused's
rights, and oral stipulations.
Punctuation Marks
Note. Do not use exclamation marks, capital letters,
bolding, or italics to inject emphasis into the record of trial. Two hyphens
(--) or a one em dash (-) may be used where the speaker changes thought
or subject and four hyphens (----) or a two em dashes (- -)
may be used where one participant interrupts another. Use periods at the
end of complete thoughts to avoid lengthy sentences. Avoid phonetic spelling.
Prefixes
Note. Indent 5 spaces from the left margin and type
the appropriate prefix to indicate identity of the speaker followed by a
colon and two spaces.
Questions and Answer
Note. When typing "Q and A," ensure at least two lines,
or the entire text of a question or answer appear at the bottom of a page.
Page break in appropriate places where necessary. Do not repeat the "Q"
or "A" prefix at the top of the next page. To the extent practicable, use
page breaks so that the answer to a question does not appear on a page separate
from the question.
Sessions of court
Note. Each session of court, as well as each Article
39(a) session or bench conference, shall commence on a new page, separate
from the other transcribed proceedings. The reporter should note the time
and date of the beginning and ending of each session of the court, including
the opening and closing of the court-martial during trial. For example:
[The (court-martial) (session) was called to order at hours, .]
[The
(court-martial) (session) was (adjourned) (recessed) at hours, .]
[The
court-martial closed at hours, .]
Administration of oaths
Note. It is not necessary to record verbatim the oath actually used,
whether it be administered to a witness, the military judge, counsel, or
the members. Regardless of the form of oath, affirmation, or ceremony by
which the conscience of the witness is bound, R.C.M. 807, only the fact that
a witness took an oath or affirmation is to be recorded. However, if preliminary
qualifying questions are asked a witness prior to the administration of an
oath, the questions and answers should be recorded verbatim. These preliminary
questions and answers do not eliminate the requirement that an oath be administered.
The following are examples of the recording of the administration of various
oaths:
[The detailed reporter, , was
sworn.]
[The detailed interpreter, , was sworn.]
[The military judge and the
personnel of the prosecution and defense were sworn.]
[The
members were sworn.]
Accounting for personnel during trial
Note. After the reporter is sworn, the reporter will record verbatim
the statements, of the trial counsel with respect to the presence of personnel
of the court-martial, counsel, and the accused.
The reporter should note whether, when a witness is excused, the witness withdraws from the courtroom
or, in the case of the accused, whether the accused resumes a seat at counsel
table. Similarly, if the military judge excuses a member as a result of challenge
and the member withdraws, the reporter should note this fact in the record.
In a special court-martial without a military judge, if a challenged member
withdraws from the court-martial while it votes on a challenge, and then is
excused as a result of challenge or resumes a seat after the court-martial
has voted on a challenge, the reporter should note this fact in the record.
Examples of the manner in which such facts should be recorded are as follows:
[The (witness withdrew from the courtroom) (accused resumed
his/her seat at the counsel table).]
[, the challenged member, withdrew from the courtroom.]
[, resumed his/her seat as a member of the court-martial.]
Arraignment
Note. The original charge sheet or a duplicate should be inserted here.
If the charges are read, the charges should also be transcribed as read. _
See_ R.C.M. 1103(b)(2)(D)(i).
Recording testimony
Note. The testimony of a witness will be recorded verbatim in a form
similar to that set forth below for a prosecution witness:
**was called as a witness for the
prosecution, was sworn, and testified as follows:**
**Questions by the (trial counsel) (assistant trial counsel):
**
Q. State your full name, (etc.).
A..
Q.?
A..
**Questions by the (defense counsel) (assistant defense counsel)
(individual military counsel) (civilian defense counsel):**
Q.?
A..
**Questions by the (trial counsel) (assistant trial counsel):
**
Q.?
A..
**Questions by the (defense counsel) (assistant defense counsel)
(individual military counsel) (civilian defense counsel):**
Q.?
A..
Questions by (the military judge) (member's name):
Q.?
A..
**Questions by the (trial counsel) (assistant trial counsel):
**
Q.?
A..
**Questions by the (defense counsel) (assistant defense counsel)
(individual military counsel) (civilian defense counsel):**
Q.?
A..
Bench conferences and
Article 39(a) sessions
Note. Bench conferences and Article 39(a) sessions should be recorded
and incorporated in the record of trial. See R.C.M. 803.
Note. When the defense counsel has examined the record of trial prior
to its being forwarded to the convening authority, the following form is
appropriate:
Form
"I have examined the record of trial in the foregoing case.
(Captain)
(Lieutenant) , Defense Counsel."
Note. If defense counsel was not given the opportunity to examine the
record before authentication, the reasons should be attached to the record. _
See_ R.C.M. 1103(i)(l)(B).
Note. The authentication should be dated.
judge.
Military Judge
(Captain) (Colonel) ,
Military Judge [or (LTJG) (1LT), Trial
Counsel, because of (death) (disability) (absence) of the military judge)]
[or (LCDR) (Major), a member in lieu of the
military judge and the trial counsel because of (death) (disability) (absence)
of the military judge, and of (death) (disability) (absence) of the trial
counsel].
Military Judge
(Captain) (Colonel) ,
Military Judge [or (LTJG) (1LT) Trial Counsel,
because of (death) (disability) (absence) of the military judge]
[or the court reporter in lieu of the military judge and trial counsel
because of (death) (disability) (absence) of the military judge, and of (death)
(disability) (absence) of the trial counsel].
President
(CDR) (LTC) ,
President [or (LTJG) (lLT) , Trial Counsel,
because of (death) (disability) (absence) of the president] [or
(LT) (CPT), a member in lieu of the president and
the trial counsel because of (death) (disability) (absence) of the president,
and of (death) (disability) (absence) of the trial counsel].
Note. If the rank of any person authenticating the record has changed
since the court-martial, the current rank should he indicated, followed by
"formerly (list the former rank)."
See R.C.M. 1103(b)(2)(D)
Note. Following the end of the transcript of the proceedings, insert
any exhibits which were received in evidence, or, with the permission of
the military judge, copies, photographs, or descriptions of any exhibits
which were received in evidence, followed by exhibits marked/offered, but
not admitted, and any appellate exhibits.
Note. Attach to the record the matters listed in R.C.M. 1103(b)(3).
See R.C.M. 1104(d)
Note. The certificate should be dated.
United
States
The record of trial in the above case, which was
tried by the court-martial convened by , dated , (at) (on board) , on , is corrected by the insertion on
page , immediately following line , of the following:
"[The detailed
reporter, was sworn.]"
This
correction is made because the reporter was sworn at the time of trial but
a statement of that effect was omitted, by error, from the record.
R.C.M.
1104(d) has been complied with.
Note. The certificate of correction is authenticated as indicated above
for the record of trial in the case.
Copy of the certificate received by me this day of , .
(Signature of accused)
(Name of accused)
Note. The certificate of correction will be bound at the end of the
original record immediately before the action of the convening authority.
An original and an appropriate number of copies of a verbatim record (see R.C.M. 1103(g)(1)(A)) will be prepared. Individual services may require additional copies. In a joint or common trial, an additional copy of the record must be prepared for each accused. See R.C.M. 1103(g)(1)(A).
Note. Pursuant to Article 54(e), in the case of a general or special court-martial involving a sexual offense, a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the
victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are authenticated. The victim shall be notified of the opportunity to receive the records of the proceedings.
The forms in this appendix are guides for preparation of the convening
authority's initial action. Guidance is also provided for actions under R.C.M.
1112(f). Appendix 17 contains forms for later actions. The forms are guidance
only, and are not mandatory. They do not provide for all cases. It may be
necessary to combine parts of different forms to prepare an action appropriate
to a specific case. Extreme care should be exercised in using these forms
and in preparing actions. _ See_ R.C.M. 1107(f) concerning
contents of the convening authority's action.
In addition to
the matters contained in the forms below, the action should show the headquarters
and place, or the ship, of the convening authority taking the action, and
the date of the action. The signature of the convening authority is followed
by the grade and unit of the convening authority, and "commander"
or "commanding" as appropriate.
When the sentence includes confinement, the place of confinement is designated in the action un-less the Secretary concerned prescribes otherwise. If the place of confinement is designated in the action, service regulations should be consulted first. See R.C.M. 1113(d)(2)(C).
In actions on a summary court-martial,
when the action is written on the record of trial (see Appendix
omitted.
**Forms 1-10 are appropriate when the adjudged sentence does
not include death, dismissal, or a dishonorable or bad-conduct discharge.**
Adjudged sentence approved and ordered executed without modification. _
See_ R.C.M. 1107(f)(4).
In the case of , the sentence is approved
and will be executed. ( is designated as the place of confinement.)
Adjudged sentence modified. _
See_ R.C.M. 1107(d)(1), (f)(4).
Adjudged sentence approved in part and ordered executed.
In the case of , only so much of the sentence as provides
for is approved and will be executed. ( is designated as the place of confinement.)
Adjudged sentence approved; part of confinement changed to forfeiture of pay.
In the case of , so much of the sentence extending
to months of confinement is changed to forfeiture of $ pay per month for months. The sentence as changed is approved and will be executed. ( is designated as the place of confinement.)
Credit for illegal pretrial confinement. See R.C.M. 305(k); 1107(f)(4)(F).
In the case of , the sentence is approved and will be executed. The accused will be credited with days of confinement against the sentence to confinement. ( is designated as the place of confinement.)
Suspension of sentence. See R.C.M. 1107(f)(4)(B); 1108(d).
Adjudged sentence approved and suspended.
In the case of , the sentence is approved. Execution of the sentence is suspended for (months) (years) at which time, unless the suspension is sooner vacated, the sentence will be remitted without further action.
Adjudged sentence approved; part of sentence suspended.
In the case of , the sentence is approved and will be executed but the execution of that part of the sentence extending to (confinement) (confinement in excess of months) (forfeiture of pay) () is suspended for (months) (years), at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. ( is designated as the place of confinement.)
Deferment of confinement and termination of deferment. _See
_ R.C.M. 1101(c); 1107(f)(4)(E).
Adjudged sentence approved; confinement deferred pending final review.
In the case of , the sentence is approved and, except for that portion extending to confinement, will be executed. Service of the sentence to confinement (is) (was) deferred effective (date), and will not begin until (the conviction is final) (date) (), unless sooner rescinded by competent authority.
_Adjudged sentence approved;
deferment of confinement terminated._
In the case of , the sentence is approved and will be executed. The service of the sentence to confinement was deferred on (date). ( is designated as the place of confinement.)
_Adjudged sentence approved; deferment of confinement terminated previously.
_
In the case of , the sentence is approved and will be executed. The service of the sentence to confinement was deferred on (date), and the deferment ended on (date). ( is designated as the place of confinement.)
Disapproval of sentence; rehearing on sentence only ordered. _
See_ R.C.M. 1107(e), (f)(4)(A).
In the case of , it appears that the following error was committed: (evidence of a previous conviction of the accused was erroneously admitted) (). This error was prejudicial as to the sentence. The sentence is disapproved. A rehearing is ordered before a (summary) (special) (general) court-martial to be designated.
When the adjudged sentence includes death, dismissal, or a dishonorable or a bad-conduct discharge, forms 1-10 are generally appropriate, but several will require modification depending on the action to be taken. This is because death, dismissal, or a dishonorable or bad-conduct discharge may not be ordered executed in the initial action. Therefore, unless an adjudged punishment of death, dismissal, or a dishonorable or bad-conduct discharge is disapproved, changed to another punishment, or (except in the case of death) suspended, the initial action must specifically except such punishments from the order of execution. This is done by adding the words "except for the part of the sentence extending to (death) (dismissal) (dishonorable discharge) (bad-conduct discharge)," after the words "is approved and" and before the words "will be executed" in the action. (A death sentence cannot be suspended. See R.C.M. 1108(b).)
**Forms 11-14 provide examples of actions when the sentence includes death, dismissal,
or a dishonorable or bad-conduct discharge.**
_Adjudged sentence approved and, except for death, dismissal, or discharge, ordered executed.
_ See R.C.M. 1107(f)(4).
In the case of , the sentence is approved and, except for the part of the sentence extending to (death) (dismissal) (dishonorable discharge) (bad-conduct discharge), will be executed. ( is designated as the place of confinement.)
Adjudged sentence modified. See R.C.M. 1107(d)(1),
(f)(4). If the part of the sentence providing for death, dismissal, or a dishonorable or a bad-conduct discharge is disapproved, see Form 2 above.
In the case of , only so much of the sentence as provides for (death) (dismissal) (a dishonorable discharge) (a bad-conduct discharge) (and [specify each approved punishment]) is approved and, except for the part of the sentence extending to (death) (dismissal) (dishonorable discharge) (bad-conduct discharge), will be executed. ( is designated as the place of confinement.)
_Adjudged sentence approved; discharge changed to confinement.
_
In the case of , so much of the sentence extending to a (dishonorable discharge) (bad-conduct discharge) is changed to confinement for months (thereby making the period of confinement total months). The sentence as changed is approved and will be executed. ( is designated as the place of confinement.)
Suspension of sentence. See R.C.M. 1107(f)(4)(B); 1108(d). If the portion of the sentence extending to dismissal or a dishonorable or a bad-conduct discharge is suspended, Form 5 or Form 6 may be used, as appropriate. If parts of the sentence other than an approved dismissal or discharge are suspended, the following form may be used:
Adjudged sentence approved; part of sentence, other than dismissal or dishonorable or bad-conduct discharge, suspended.
In the case of , the sentence is approved and, except for that part of the sentence extending to (dismissal) (a dishonorable discharge) (a bad-conduct discharge), will be executed, but the execution of that part of the sentence adjudging (confinement) (confinement in excess of) (forfeiture of pay) () is suspended for (months) (years) at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. ( is designated as the place of confinement.)
Findings are addressed in the action only when
any findings of guilty are disapproved, in whole or part. See R.C.M. 1107(c), (f)(3). The action must also indicate what action is being taken on the sentence. Appropriate parts of the foregoing forms for action on the sentence may be substituted in the following examples as necessary.
Some findings of guilty disapproved; adjudged sentence approved.
In the case of , the finding of guilty of Specification 2, Charge I is disapproved. Specification 2, Charge I is dismissed. The sentence is approved and (, except for that part of the sentence extending to ((dismissal) (a dishonorable discharge) (a bad-conduct discharge),) will be executed. ( is designated as the place of confinement.)
Finding of guilty of lesser included offense approved; adjudged sentence modified.
In the case of , the finding of guilty of Specification 1, Charge II is changed to a finding of guilty of (assault with a means likely to produce grievous bodily harm, to wit: a knife) (absence without authority from the (unit) (ship) () alleged from (date) to (date) in violation of Article 86) (). Only so much of the sentence as provides for is approved and (, except for the part of the sentence extending to ((dismissal) (dishonorable discharge) (bad-conduct discharge)), will be executed. ( is designated as the place of confinement.)
_Some findings of guilty and sentence disapproved;
combined rehearing ordered_. See 1107(e). A rehearing may not be ordered if any sentence is approved. See R.C.M. 1107(c)(2)(B); (e)(1)(c)(i).
In the case of , it appears that the following error was committed: (Exhibit 1, a laboratory report, was not properly authenticated and was admitted over the objection of the defense) (). This error was prejudicial as to Specifications 1 and 2 of Charge II. The findings of guilty as to Specifications 1 and 2 of Charge II and the sentence are disapproved. A combined rehearing is ordered before a court-martial to be designated.
_All findings of guilty and sentence disapproved;
rehearing ordered._ See R.C.M. 1107(c)(2)(B).
In the case of , it appears that the following error was committed: (evidence offered by the defense to establish duress was improperly excluded) (). This error was prejudicial to the rights of the accused as to all findings of guilty. The findings of guilty and the sentence are disapproved. A rehearing is ordered before a court-martial to be designated.
All findings of guilty and sentence disapproved based on jurisdictional error; another trial ordered. See R.C.M. 1107(e)(2). This form may also be used when a specification
fails to state an offense.
In the case of , it appears that (the members were not detailed to the court-martial by the convening authority) (). The proceedings, findings, and sentence are invalid. Another trial is ordered before a court-martial to be designated.
All findings of guilty and sentence disapproved; charges dismissed. _
See_ R.C.M. 1107(c)(2)(B).
In the case of , the findings of guilty and the sentence are disapproved. The charges are dismissed.
The action on a rehearing is the same as an action on an original court-martial in most respects. It differs first in that, as to any sentence approved following the rehearing, the accused must be credited with those parts of the sentence previously executed or otherwise served. Second, in certain cases the convening authority must provide for the restoration of certain rights, privileges, and property. See R.C.M. 1107(f)(5)(A).
_
Action on rehearing; granting credit for previously executed or served punishment.
_
In the case of , the sentence is approved and (, except for the portion of the sentence extending to ((dismissal) (dishonorable discharge) (bad-conduct discharge)), will be executed. The accused will be credited with any portion of the punishment served from (date) to (date) under the sentence adjudged at the former trial of this case.
Action on rehearing; restoration of rights.
In the case of , the findings of guilty and the sentence are disapproved and the charges are dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of the execution of the sentence adjudged at the former trial of this case on (date) will be restored.
In the case of , the accused was found not guilty of all the charges and specifications which were tried at the former hearing. All rights, privileges, and property of which the accused has been deprived by virtue of the execution of the sentence adjudged at the former trial of this case on (date) will be restored.
Form 24 is appropriate for withdrawal of an earlier action. See R.C.M. 1107(f)(2) concerning modification of an earlier action. Form 24a is appropriate for withdrawal of previous action pursuant to instructions from reviewing authority pursuant to R.C.M. 1107(f)(2) or (g). When the action of a predecessor in command is withdrawn due to ambiguity, see United States v. Lower, 10 M.J. 263 (C.M.A. 1981).
In the case of , the action taken by (me) (my predecessor in command) on (date) is withdrawn and the following substituted therefor:
.
In the case of , in accordance with instructions from (The Judge Advocate General) (the Court of Criminal Appeals) pursuant to Rule for Courts-Martial [1107(f)(2)]
[1107(g)], the action taken by (me) (my predecessor in command) is withdrawn. The following is substituted therefor:
.
Under the authority of Article 58a, the Secretary concerned may, by regulation, limit or specifically preclude the reduction in grade which would otherwise be effected under that Article upon the approval of certain court-martial sentences by the convening authority. The Secretary concerned may provide in regulations that if the convening or higher authority taking action on the case suspends those elements of the sentence that are specified in Article 58a the accused may be retained in the grade held by the accused at the time of the sentence or in any intermediate grade. Forms 25-27 may be used by the convening or higher authority in effecting actions authorized by the Secretary concerned in regulations pursuant to the authority of Article 58a.
If the convening authority or higher authority, when taking action on a case in which the sentence includes a punitive discharge, confinement, or hard labor without confinement, elects to approve the sentence and to retain the enlisted member in the grade held by that member at the time of sentence or in any intermediate grade, that authority may do so if permitted by regulations of the Secretary concerned whether or not the sentence also includes a reduction to the lowest enlisted grade, by using one of the following forms of action. The first action, Form 25, is appropriate when the sentence does not specifically provide for reduction. The second and third actions, Forms 26 and 27, are appropriate when the sentence specifically provides for reduction to the grade of E-1. The action set forth in Form 26 is intended for a case in which the accused is to be probationally retained in the grade held by that accused at the time of sentence. The action set forth in Form 27 is for a case in which the accused is to serve probationally in an intermediate grade.
_Automatic reduction suspended; sentence does not
specifically include reduction.
_
In the case of , the sentence is approved and will be executed, but the execution of that part of the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without confinement) (and) is suspended for (months) (years) at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The accused will (continue to) serve in the grade of unless the suspension of (the dishonorable discharge) (the bad-conduct discharge) (confinement) (hard labor without confinement) is vacated, in which event the accused will be reduced to the grade of E-1 at that time.
Automatic reduction and adjudged reduction to E-l suspended; accused retained in grade previously held.
In the case of , the sentence is approved and will be executed, but the execution of that part of the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without confinement) (), and reduction to the grade of E-1, is suspended for (months) (years), at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The accused will continue to serve in the grade of unless the suspension of (the dishonorable discharge) (the bad-conduct discharge) (confinement) (hard labor without confinement), or reduction to the grade of E-1, is vacated, in which event the accused will be reduced to the grade of E-1 at that time.
_
Automatic reduction and adjudged reduction to E-l suspended; accused retained in intermediate grade._
In the case of , the sentence is approved and will be executed but the execution of that part of the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without confinement), and that part of the reduction which is in excess of reduction to the grade of is suspended for (months) (years) at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The accused will serve in the grade of unless the suspension of (the dishonorable discharge) (bad-conduct discharge) (confinement) (hard labor without confinement), or reduction to the grade of E-1, is vacated, in which event the accused will be reduced to the grade of E-1 at that time.
ACTION UNDER R.C.M. 1112(f). The forms for action for the officer taking action under R.C.M. 1112(f) are generally similar to the foregoing actions. The officer taking action under R.C.M. 1112 (f) may order executed all parts of the approved sentence, including a dishonorable or bad-conduct discharge, except those parts which have been suspended without later vacation unless the record must be forwarded under R.C.M. 1112(g)(1). See R.C.M. 1113(c)(1)(A). The following are additional forms which may be appropriate:
_
Sentence approved when convening authority suspended all or part of it._
In the case of , the sentence as approved and suspended by the convening authority is approved.
Sentence approved and, when confinement was deferred, ordered executed. _
See_ R.C.M. 1101(c)(6).
In the case of , the sentence is approved and the confinement will be executed. The service of the sentence to confinement was deferred on (date). ( is designated as the place of confinement.)
Sentence includes unsuspended dishonorable or bad-conduct discharge; order of execution. See R.C.M. 1113(c)(1) and (2).
In the case of , the sentence is approved. The (dishonorable discharge) (bad-conduct discharge) will be executed.
Findings and sentence disapproved; restoration as to parts ordered executed by convening authority. See R.C.M. 1208(b).
In the case of , the findings of guilty and the sentence are disapproved. The charges are dismissed. (The accused will be released from the confinement adjudged by the sentence in this case and all) (All) rights, privileges, and property of which the accused has been deprived by virtue of the findings and sentence disapproved will be restored.
_
Findings and sentence disapproved; rehearing authorized._ _
See_ R.C.M. 1112(f).
In the case of , it appears that the following error was committed: (Exhibit 1, a statement of the accused, was not shown to have been preceded by Article 31 warnings as required and was admitted over the objection of the defense) (). This error was prejudicial to the rights of the accused as to the findings and the sentence. The case is returned to the convening authority who may order a rehearing or dismiss the charges.
_Action taken is less favorable to the
accused than that recommended by the judge advocate._ _See
_ R.C.M. 1112(e), (f).
In the case of , the sentence is approved. As this action is less favorable to the accused than that recommended by the judge advocate, the record and this action shall be forwarded to the Judge Advocate General for review under Article 69(b).
Action when approved sentence includes dismissal. See R.C.M.
1113(c)(2).
In the case of , the sentence is approved. The record shall be forwarded to the Secretary of the .
[Note. The following is a form applicable in promulgating
the results of trial and the action of the convening authority in all general
and special court-martial cases. Omit the marginal side notes in drafting
orders. See R.C.M. 1114(c).]
Heading
(General) (Special)(Headquarters) (USS)
Court-Martial
Order No.
[Note. The date must be the same as the date of the convening
authority's action, if any.]
(Grade)(Name)(SSN)(Armed Force)
(Unit)
Arraignment
was arraigned (at/on board ) on the
following offenses at a court-martial convened by (this command) (Commander, ).
Offenses
Specification 1: Unauthorized absence from unit from 1 April 1984
to 31 May 1984. Plea: G. Finding: G.
[Note. Specifications may be reproduced verbatim or may
be summarized. Specific factors, such as value, amount, and other circumstances
which affect the maximum punishment should be indicated in a summarized
specification. Other significant matters contained in the specification may
be included. If the specification is copied verbatim, include any amendment
made during trial. Similarly, information included in a summarized specification
should reflect any amendment to that information made during the trial.]
Specification 2: Failure to repair on 18 March 1984. Plea: None
entered. Finding: Dismissed on motion of defense for failure to state an
offense.
[Note. If a finding is not entered to a specification because,
for example, a motion to dismiss was granted, this should be noted where
the finding would otherwise appear.]
of ARTICLE 92.
Specification: Disobedience of superior noncommissioned officer
on 30 March 1984 by refusing to inspect sentinels on perimeter of bivouac
site. Plea: NG. Finding: G, except for disobedience of superior noncommissioned
officer, substituting failure to obey a lawful order to inspect sentinels
on perimeter of bivouac site.
Specification 1: Wrongful possession of 150 grams of marijuana on
24 March 1984. Plea: G. Finding: G.
Specification 2: Wrongful use of
marijuana while on duty as a sentinel on 24 March 1984. Plea: G. Finding
Specification 3: Wrongful possession of heroin with intent to distribute
on 24 March 1984. Plea: NG.Finding: G.
Specification: Larceny of property of a value of $150.00 on 27 March
"wrongfully appropriate."
Acquittal
If the accused was acquitted of all charges and specifications,
the date of the
acquittal should be shown: "The findings were
announced on ."
**
SENTENCE**
Sentence adjudged on : Dishonorable discharge, forfeiture of all pay and allowances,
confinement for 2 years, and reduction to the lowest enlisted grade.
Action of convening authority
ACTION
[Note. Summarize or enter verbatim the action of the
convening authority. Whether or not the action is recited verbatim, the heading,
date, and signature block of the convening authority need not be copied from
the action if the same heading and date appear at the top of this order and
if the name and rank of the convening authority are shown in the authentication.]
Authentication
[Note. See R.C.M. 1114(e) concerning
authentication of the order.]
Joint or common trial
[Note. In case of a joint or common trial, separate trial
orders should be issued for each accused. The description of the offenses
on which each accused was arraigned may, but need not, indicate that there
was a co-accused.]
[Note. Court-martial orders publishing the final results of
cases in which the President or the Secretary concerned has taken final action
are promulgated by departmental orders. In other cases the final action may
be promulgated by an appropriate convening authority, or by an officer exercising
general court-martial jurisdiction over the accused at the time of final
action, or by the Secretary concerned. The following sample forms may be
used where such a promulgating order is published in the field. These forms
are guides. Extreme care should be exercised in using them. If a sentence
as ordered into execution or suspended by the convening authority is affirmed
without modifications and there has been no modification of the findings,
no supplementary promulgating order is required.]
Heading
*See above.
Sentence
-Affirmed
In the (general) (special) court-martial case of_ (name,
grade or rank, branch of service, and SSN of accused,)_ the sentence
to bad-conduct discharge, forfeiture of , and confinement for , as promulgated in (General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval District)
dated , has been finally affirmed.
Article 71(c) having been complied with, the bad-conduct discharge will be
executed.
or
-Affirmed in part
In the (general) (special) court-martial case of _(name,
grade or rank, branch of service, and SSN of accused,)_ only so much
of the sentence promulgated in (General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval
District) , dated , as provides for , has been
finally affirmed. Article 71(c) having been complied with, the bad-conduct
discharge will be executed.
or
In the (general) (special) court-martial
case of _(name, grade or rank, branch of service, and SSN of accused,)
_ the findings of guilty of Charge II and its specification have been
set aside and only so much of the sentence promulgated in (General) (Special)
Court-Martial Order No. , (Headquarters) (Commandant, , Naval District) ,
dated , as provides
for , has been finally affirmed. Article 71(c) having been
complied with, the bad-conduct discharge will be executed.
or
Affirmed in part; prior order of execution set aside in
part
In the (general) (special) court-martial case of_ (name,
grade or rank, branch of service, and SSN of accused,)_ the proceedings
of which are promulgated in (General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval
District) , dated , the findings of guilty of Charge I and its specification,
and so much of the sentence as in excess of have
been set aside and the sentence, as thus modified, has been finally affirmed.
Article 71(c) having been complied with, all rights, privileges, and property
of which the accused has been deprived by virtue of the findings of guilty
and that portion of the sentence so set aside will be restored.
Finding and sentence set aside
In the (general)(special) court-martial case of_ (name, grade
or rank, branch of service, and SSN, of accused,)_ the findings
of guilty and the sentence promulgated by (General) (Special) Court-Martial
Order No. , (Headquarters) (Commandant, Naval District), , dated , were set aside on . (The charges are dismissed.
All rights, privileges, and property of which the accused has been deprived
by virtue of the findings of guilty and the sentence so set aside will be
restored.) (A rehearing is ordered before another court-martial to be designated.)
Authentication
See R.C.M. 1114(e).
Heading
See a above.
Remissions; suspension
See R.C.M.
1108
The unexecuted portion of the sentence to ,
in the case of _(Name, grade or rank, branch of service and SSN of
accused,)_ promulgated in (General) (Special) Court-Martial Order
No. , (this headquarters) (this ship)
(Headquarters ) (USS ),
, , is (remitted)
(suspended for , months, at which time,
unless the suspension is sooner vacated, the unexecuted portion of the sentence
will be remitted without further action).
Authentication
See R.C.M. 1114(e).
[Note. Orders promulgating the vacation of the suspension
of a dismissal will be published by departmental orders of the Secretary
concerned. Vacations of any other suspension of a general court-martial sentence,
or of a special court-martial sentence that as approved and affirmed includes
a bad-conduct discharge or confinement for one year, will be promulgated
by the officer exercising general court-martial jurisdiction over the probationer
(Article 72(b)). The vacation of suspension of any other sentence may be
promulgated by an appropriate convening authority under Article 72(c). _
See_ R.C.M. 1109.]
Heading
See a above.
Vacation of Suspension
So much of the order published in (General) (Special) (Summary)
(Court-Martial Order No. ) (the record of summary
court-martial), (this headquarters) (this ship) (Headquarters ) (USS ), . , in the case of_ (name, grade
or rank, branch of service, and SSN)_, as suspends, effective , execution of the approved
sentence to (a bad-conduct discharge) (confinement for (months) (years)) (forfeiture of ),
(and subsequently modified by (General) (Special) Court-Martial Order No. , (this headquarters) (this ship) (Headquarters ) (USS ), . , is vacated. (The unexecuted portion
of the sentence to will be executed.) ( is designated as the place of confinement.)
[Note. See R.C.M. 1113 concerning execution
of the sentence.]
Authentication
See R.C.M.1114(e).
[Note: When any deferment previously granted is rescinded
after the convening authority has taken action in the case, such rescission
will be promulgated in a supplementary order. See R.C.M.
1101(c)(7)(C).]
Heading
See a above.
Rescission of deferment
The deferment of that portion of the sentence that provides for
confinement for (months) (years) published
in (General) (Special) Court-Martial Order (this
headquarters) (this ship) (Headquarters ) (USS ), ,
in the case of_ (name, grade or rank, branch of service, and SSN
of accused)_ (is rescinded) (was rescinded on .) The portion of the sentence to
confinement will be executed. ( is designated as
the place of confinement.)
Authentication
See R.C.M. 1114(e).
[Note. Deferment may be terminated by an appropriate
authority once the conviction is final under Article 71(c) and R.C.M. 1208(a). _
See_ R.C.M. 1101(c)(7).]
Heading
See a above.
In the (general) (special)
court-martial case of _(name, grade or rank, branch of service, and
SSN of accused,)_ the sentence to confinement (and ), as promulgated in (General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval
District) , dated , has been finally affirmed. Service of confinement was
deferred on .
Article 71(c) having been complied with, the (bad-conduct discharge and
the) sentence to confinement will be executed. ( is
designated as the place of confinement.)
Authentication
See R.C.M. 1114(e).
Subject to Review by a Court of Military Review (DD Form 2330)
to Examination in the Office of the Judge Advocate General (DD Form 2331)
The Manual for Courts-Martial, United States, 1984, includes
Executive Order No. 12473 signed by President Reagan on 13 April 1984. This
publication also contains various supplementary materials for the convenience
of the user.
_History of the Manual for Courts-Martial.
_ The President traditionally has exercised the power to make rules
for the government of the military establishment, including rules governing
courts-martial. See W. Winthrop, _Military Law and
Precedents_ 27-28 (2d ed. 1920 reprint). Such rules have been
promulgated under the President's authority as commander-in-chief, _
see_ U.S. Const., Art. II, sec. 2, cl.1., and, at least since 1813,
such power also has been provided for in statutes. See W.
Winthrop, supra at 26-27. In 1875 Congress specifically
provided for the President to make rules for the government of courts-martial.
Act of March 1, 1775, Ch. 115. 18 Stat. 337. Similar authority was included
in later statutes (see e.g., A.W. 38 (1916)), and continues
in Article 36 of the Uniform Code of Military Justice. See also Articles
18 and 56. _See generally Hearings on H.R. 3804 Before the Military
Personnel Subcom. of the House Comm. on Armed Services_, 96th Cong.,
1st Sess. 5-6, 14, 17-18, 20-21, 52, 106 (1979). In 1979,
Article 36 was amended to clarify the broad scope of the President's rulemaking
authority for courts-martial. Act of November 9, 1979, Pub. L. No. 96-107,
Section 801(b), 93 Stat. 810,811. _See generally Hearings on H.R.
3804, supra_.
In the nineteenth century the President
promulgated, from time to time, regulations for the Army. Those regulations
were published in various forms, including "Manuals". W. Winthrop, _
supra_ at 28. Such publications were not limited to court-martial
procedures and related matters; however, they were more in the nature of
compendiums of military law and regulations. The early manuals for courts-martial
were informal guides and were not promulgated by the President. _See
_ MCM, 1895 at 1, 2; MCM, 1905 at 3; MCM, 1910 at 3; MCM, 1917 at
The forerunner
of the modern Manual for Courts-Martial was promulgated by
the Secretary of War in 1895. See MCM, 1895 at 2. _
See also_ Hearings on H.R. 3805, supra at 5. (Earlier
Manuals were prepared by individual authors. See e.g., A.
Murray, A Manual for Courts-Martial (3d ed. 1893); H. Coppee,
Field manual for Courts-Martial (1863)). Subsequent Manuals
through MCM, 1969 (Rev.) have had the same basic format, organization, and
subject matter as MCM, 1895, although the contents have been modified and
considerably expanded. See e.g., MCM, 1921 at XIX-XX.
The format has been a paragraph format, numbered consecutively and divided
into chapters. The subject matter has included pretrial, trial, and post-trial
procedure. In MCM, 1917, rules of evidence and explanatory materials on the
punitive articles were included. See, MCM, 1917 at XIV.
The President first promulgated the Manual for Courts-Martial as such in 1921. _
See_ MCM, 1921 at XXVI.
_Background of this Manual.
_ During the drafting of the Military Rules of Evidence
(see Analysis, Part III, introduction, infra), the
drafters identified several portions of MCM, 1969 (Rev.) in specific areas.
However, the project to draft the Military Rules of Evidence had demonstrated
the value of a more comprehensive examination of existing law. In addition,
changing the format of the Manual for Courts-Martial was considered desirable.
In this regard it should be noted that, as indicated above, the basic format
and organization of the Manual for Courts-Martial had remained the same for
over 80 years, although court-martial practice and procedure had changed
substantially.
Upon completion of the Military Rules of Evidence
in early 1980, the General Counsel, Department of Defense, with the concurrence
of the Judge Advocates General, directed that the Manual for Courts-Martial
be revised. There were four basic goals for the revision. First, the new
Manual was to conform to federal practice to the extent possible, except
where the Uniform Code of Military Justice requires otherwise or where specific
military requirements render such conformity impracticable. See Article
was to be thoroughly examined and the Manual was to be brought up to date,
by modifying such practice and precedent or conforming to it as appropriate.
Third, the format of the Manual was to be modified to make it more useful
to lawyers (both military and civilian) and nonlawyers. Specifically, a rule
as opposed to paragraph format was to be used and prescriptive rules would
be separated from nonbinding discussion. Fourth, the procedures in the new
Manual had to be workable across the spectrum of circumstances in which courts-martial
are conducted, including combat conditions.
These goals were intended
to ensure that the Manual for Courts-Martial continues to fulfill its fundamental
purpose as a comprehensive body of law governing the trial of courts-martial
and as a guide for lawyers and nonlawyers in the operation and application
of such law. It was recognized that no single source could resolve all issues
or answer all questions in the criminal process. However, it was determined
that the Manual for Courts-Martial should be sufficiently comprehensive, accessible,
and understandable so it could be reliably used to dispose of matters in
the military justice system properly, without the necessity to consult other
sources, as much as reasonably possible.
The Joint-Service Committee
on Military Justice was tasked with the project. The Joint-Service Committee
consists of representatives from each of the armed forces, and a nonvoting
representative from the Court of Military Appeals. Since 1980 the Joint-Service
Committee has consisted of Colonel (later Brigadier General) Donald W. Hansen,
USA, 1980-July 1981 (Chairman, October 1980-July 1981); Colonel Kenneth
A. Raby, USA, July 1981-January 1984 (Chairman, July 1981-September
1982); Captain Edward M. Byrne, USN, 1980-July 1981 (Chairman through
September 1980); Captain John J. Gregory, USN, July 1981-January 1984;
Colonel Richard T. Yery USAF, 1980-March 1982; Colonel John E. Hilliard,
USAF, March 1982-October 1983 (Chairman, October 1982-October
1983); Colonel Thomas L. Hemingway, USAF, October 1983-January 1984 (Chairman,
October 1983-January 1984); Lieutenant Colonel A.F. Mielczarski, USMC,
1980-July 1982; Lieutenant Colonel G.W. Bond, USMC, July 1982-October
1982, Lieutenant Colonel Gary D. Solis, USMC, October 1982-March 1983;
Lieutenant Colonel George Lange, III, USMC, June 1983-January 1984;
Commander William H. Norris, USCG, 1980-August 1981; Commander Thomas
B. Snook, USCG, August 1981-September 1983; Captain William B. Steinbach,
USCG, October 1983-January 1984; and Mr. Robert H. Mueller of the Court
of Military Appeals (1980-January 1984).
In the summer
of 1980, Commander James E. Pinnell, USN, and Major Frederic I. Lederer, USA,
prepared an initial outline of the new Manual.
Drafting was done
by the Working Group of the Joint-Service Committee on Military Justice. Since
September 1980, when the drafting process began, the Working Group consisted
of: Major John S. Cooke, USA (Chairman); Commander James E. Pinnell, USN;
Lieutenant Colonel Richard R. James, USAF (1980-December 1982); Lieutenant
Colonel Robert Leonard, USAF (December 1982 to January 1984); Major Jonathan
R. Rubens, USMC; and Mr. John Cutts, and Mr. Robert Mueller of the staff
of the Court of Military Appeals. Mr. Francis X. Gindhart and Mr. Jack McKay
of the staff of the Court of Military Appeals also participated early in the
drafting process. Clerical support was provided by the Court of Military
Appeals. In this regard, Mrs. Gail L. Bissi has been instrumental in the
success of this project.
The Working Group drafted the Manual
in fourteen increments. Each increment was circulated by each service to
various field offices for comment. Following such comment, each increment
was reviewed in the respective offices of the Judge Advocate General, the
Director, Judge Advocate Division, Headquarters, USMC, and the Chief Counsel,
USCG, and in the Court of Military Appeals. Following such review, the Joint-Service
Committee met and took action on each increment. After all increments had
been reviewed and approved, the Code Committee approved the draft. At this
time the Code Committee consisted of Chief Judge Robinson O. Everett, Judge
William H. Cook, and Judge Albert B. Fletcher, of the Court of Military Appeals;
Rear Admiral James J. McHugh, the Judge Advocate General, USN; Major General
Hugh J. Clausen, The Judge Advocate General, USA; Major General Thomas Bruton,
The Judge Advocate General, USAF; and Rear Admiral Edward Daniels, Chief
Counsel, USCG. Brigadier General William H. J. Tiernan, USMC, also sat as
an ex officio member.
Following approval by the
Code Committee, the draft was made available for comment by the public. 48
Fed. Reg. 23688 (May 26, 1983). In September and October 1983, the comments
were reviewed. The Working Group prepared numerous modifications in the draft
based on comments from the public and from within the Department of Defense,
and on judicial decisions and other developments since completion of the draft.
In October 1983, the Joint-Service Committee approved the draft for forwarding
to the General Counsel, Department of Defense, for submission to the President
after coordination by the Office of Management and Budget.
On
November 18, 1983, Congress passed the Military Justice Act of 1983. This
act was signed into law by the President on December 6, 1983, Pub. L. No.
98-209, 97 Stat. 1393 (1983). The Working Group had previously drafted
proposed modifications to the May 1983 draft which would be necessary to implement
the act. These proposed modifications were approved by the Joint-Service
Committee in November 1983 and were made available to the public for comment
in December 1983. 48 Fed. Reg. 54263 (December 1, 1983). These comments were
reviewed and modifications made in the draft by the Working Group, and the
Joint-Service Committee approved these changes in January 1984. The draft
of the complete Manual and the proposed executive order were forwarded to
the General Counsel, Department of Defense in January 1984. These were reviewed
and forwarded to the Office of Management and Budget in January 1984. They
were reviewed in the Departments of Justice and Transportation. The Executive
Order was finally prepared for submission to the President, and the President
signed it on 13 April 1984.
_A note on citation form.
_ The drafters generally have followed the _Uniform System
of Citation_ (13th ed. 1981), copyrighted by the_ Columbia,
Harvard, and University of Pennsylvania Law Reviews_ and the_
Yale Law Journal_, subject to the following.
This edition
of the Manual for Courts-Martial is referred to generally as "this Manual."
The Rules for Courts-Martial are cited, e.g., as R.C.M.
Mil. R. Evid. 101. Other provisions of this Manual are cited to the applicable
part and paragraph, e.g., MCM, Part V, paragraph 1a(1) (1984).
The
previous edition of the Manual for Courts-Martial will be referred to as "MCM,
1969 (Rev.)." Except as otherwise noted, this includes Exec. Order
No. 11476, 34 Fed. Reg. 10,502 (1969), as amended by Exec. Order No. 11835,
40 Fed. Reg. 4,247 (1975); Exec. Order No. 12018, 42 Fed. Reg. 57,943 (1977);
Exec. Order No. 12198, 45 Fed. Reg.16,932 (1980); Exec. Order No. 12223, 45
Fed. Reg. 58,503 (1980); Exec. Order No. 12306, 46 Fed. Reg. 29,693 (1981);
Exec. Order No. 12315, 46 Fed. Reg. 39,107 (1981); Exec. Order No. 12340,
47 Fed. Reg. 3,071 (1982); Exec. Order No. 12383, 47 Fed. Reg. 42,317 (1982),
and Executive Order No. 12460, Fed. Reg. (1984). Earlier editions of the
Manual for Courts-Martial, will be identified by a complete citation.
The
Uniform Code of Military Justice, 10 U.S.C. Sections 801-940, as amended
by the Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393
will be cited as follows:
Each individual section is denominated
in the statute as an "Article" and will be cited to the corresponding
Article. E.g., 10 U.S.C. Section 801 will be cited as "Article
1"; 10 U.S.C. Section 802 will be cited as "Article 2";
10 U.S.C. Section 940 will be cited as "Article 140". The entire
legislation, Articles 1 through 140, will be referred to as "the Code"
or "the UCMJ" without citation to the United States Code. When
a change from MCM, 1969 (Rev.) is based on the Military Justice Act of 1983,
Pub. L. No. 98-209, 97 Stat, 1393 (1983), this will be noted in the
analysis, with citation to the appropriate section of the act. When this
analysis was drafted, the specific page numbers in the statutes at large
were not available.
_Composition of the Manual for Courts-Martial
(1984)_
The Executive Order includes the Manual for Courts-Martial,
which consists of the Preamble, Rules for Courts-Martial, Military Rules
of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedure.
Each rule states binding requirements except when the text of the rule expressly
provides otherwise. Normally, failure to comply with a rule constitutes error. _
See_ Article 59 concerning the effect of errors.
As a supplement to the Manual, the Department of Defense,
in conjunction with the Department of Homeland Security, has published a Discussion
(accompanying the Preamble, the Rules for Courts-Martial, and the Punitive
Articles), this Analysis, and various Appendices.
The Discussion is intended by the drafters to serve
as a treatise. To the extent that the Discussion uses terms such as "must"
or "will", it is solely for the purpose of alerting the user
to important legal consequences that may result from binding requirements
in the Executive Order, judicial decisions, or other sources of binding law.
The Discussion itself, however, does not have the force of law, even though
it may describe legal requirements derived from other sources. It is in the
nature of treatise, and may be used as secondary authority. The inclusion
of both the President's rules and the drafters' informal discussion in the
basic text of the Manual provides flexibility not available in previous editions
of the Manual, and should eliminate questions as to whether an item is a
requirement or only guidance. See e.g., United States v. Baker,
14 M.J. 361, 373 (C.M.A. 1973). In this Manual, if matter is included in a
rule or paragraph, it is intended that the matter be binding, unless it is
clearly expressed as precatory. A rule is binding even if the source of the
requirement is a judicial decision or a statute not directly applicable to
courts-martial. If the President had adopted a rule based on a judicial decision
or a statute, subsequent repeal of the statute or reversal of the judicial
decision does not repeal the rule. On the other hand, if the drafters did
not choose to "codify" a principle or requirement derived from
a judicial decision or other source of law, but considered it sufficiently
significant that users should be aware of it in the Manual, such matter is
addressed in the Discussion. The Discussion will be revised from time to
time as warranted by changes in applicable law.
The Analysis sets forth the nonbinding views of the
drafters as to the basis for each rule or paragraph, as well as the intent
of the drafters, particularly with respect to the purpose of substantial changes
in present law. The Analysis is intended to be a guide in interpretation.
In that regard, note that the Analysis accompanied the project from the initial
drafting stage through submission to the President, and was continually revised
to reflect changes prior to submission to the President. Users are reminded,
however, that primary reliance should be placed on the plain words of the
rules. In addition, it is important to remember that the Analysis solely
represents the views of staff personnel who worked on the project, and does
not necessarily reflect the views of the President in approving it, or of
the officials who formally recommended approval to the President.
The
Analysis frequently refers to judicial decisions and statutes from the civilian
sector that are not applicable directly to courts-martial. Subsequent modification
of such sources of law may provide useful guidance in interpreting rules,
and the drafters do not intend that citation of a source in this Analysis
should preclude reference to subsequent developments for purposes of interpretation.
At the same time, the user is reminded that the amendment of the Manual is
the province of the President. Developments in the civilian sector that affect
the underlying rationale for a rule do not affect the validity of the rule
except to the extent otherwise required as a matter of statutory or constitutional
law. The same is true with respect to rules derived from the decisions of
military tribunals. Once incorporated into the Executive Order, such matters
have an independent source of authority and are not dependent upon continued
support from the judiciary. Conversely, to the extent that judicial precedent
is set forth only in the Discussion or is otherwise omitted from the Rules
or the Discussion, the continuing validity of the precedent will depend on
the force of its rationale, the doctrine of stare decisis,
and similar jurisprudential considerations. Nothing in this Introduction
should be interpreted to suggest that the placement of matter in the Discussion
(or the Analysis), rather than the rule, is to be taken as disapproval of
the precedent or as an invitation for a court to take a different approach;
rather, the difficult drafting problem of choosing between a codification
and common law approach to the law frequently resulted in noncodification
of decisions which had the unanimous support of the drafters. To the extent
that future changes are made in the Rules or Discussion, corresponding materials
will be included in the Analysis.
The Appendices contain various nonbinding materials to assist users of this Manual. The Appendices also contain excerpts from pertinent statutes. These excerpts are appropriated for judicial notice of law, see Mil. R. Evid. 201A, but nothing
herein precludes a party from proving a change in law through production
of an official codification or other appropriate evidence.
220466
22
The preamble is based on paragraphs 1 and 2 of MCM, 1969 (Rev.).
See generally Military Justice Jurisdiction of Courts-Martial,
DA PAM 27-174, chapter 1 (May 1980.)
This subsection is based on paragraph 1 of MCM, 1969 (Rev.). The
provisions of the Constitution which are sources of jurisdiction of military
courts or tribunals include: Art I, sec. 8, cl. 1, 9-16, 18; Art. II,
sec. 2; Art. IV, sec. 4; and the fifth amendment. As to sources in international
law, see e.g., Ex Parte Quirin, 317 U.S. 1 (1942); Geneva
Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
arts. 82-84, 6 U.S.T. 3316, 3382, T.I.A.S. No. 3365, 75 U.N.T.S. 287. _
See generally_ DA PAM 27-174, supra at paragraph
1-3.
Subsection (a) is based on the first paragraph of paragraph 2 of
MCM, 1969 (Rev.).
For additional materials on martial law,
see W. Winthrop, Military Law and Precedent 817-30
(2d ed. 1920 reprint); _Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
See also_ paragraph 3, sec. 1 of MCM, 1910 (concerning the exercise
of martial law over military affiliated persons).
For additional
materials on military government, see W. Winthrop, _
supra_ at 798-817;_ Madsen v. Kinsella_, 343
U.S. 341 (1952); Mechanics' and Traders' Bank v. Union Bank,
89 U.S. (22 Wall.) 276 (1875).
For additional materials on the
exercise of military jurisdiction under the law of war,see W.
Winthrop, supra at 831-46; _Trials of War Criminals
Before the Nuremberg Tribunals_ (U.S. Gov't Printing Off., 1950-51); _
Trials of the Major War Criminals Before the International Military Tribunal
_ (International Military Tribunal, Nuremberg 1947); _In re
Yamashita_, 327 U.S. 1 (1946); _Ex parte Quirin, supra; Ex
parte Milligan, supra_; Articles 18 and 21.
Subsection
See also_ Article 21; DA PAM 27-174, supra at
paragraph 1-5 a; W. Winthrop, supra at
802-05, 835-36. As to provost courts,_ see also Hearings
on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services_,
81st Cong., 1st Sess. 975, 1061 (1949). As to trial of prisoners of war, _
see_ Article 2(a)(9) and Article 102, 1949 Geneva Convention Relative
to the Treatment of Prisoners of War, supra
See generally Chappel v. Wallace, 462 U.S. 296,
103 S.Ct. 2362 (1983); Parker v. Levy, 417 U.S. 733 (1974);
S.Rep. No. 53, 98th Cong., 1st Sess. 2-3 (1983). For a discussion of
the nature and purpose of military law, see R. Everett, _
Military Justice in the Armed Forces of the United States_ (1956);
J. Bishop, Justice Under Fire (1974); Hodson, _Military
Justice: Abolish or Change?, 22 Kan. L. Rev. 31 (1975), reprinted
in_ Mil. L. Rev. Bicent. Issue 579 (1976); Hansen, _Judicial
Functions for the Commander_, 41 Mil.L.Rev. 1 (1968); _Hearings
on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services_,
81st Cong., 1st Sess. 606, 778-86 (1949); H. Moyer, _Justice
and the Military_ 5-23 (1972).
Self-explanatory. See also the _Introduction
_ of the Analysis.
This subsection is patterned after Fed. R. Crim. P. 1. "Courts-martial"
are classified by Article 16. Supplementary procedures include all procedures
directly relating to the court-martial process, such as preparation and authentication
of the record, vacation proceedings, preparation of orders, and professional
supervision of counsel and military judges. The rules do not govern imposition
of nonjudicial punishment (see Part V) or administrative
actions.
This subsection is patterned after Fed. R. Crim. P. 60.
This rule restates Fed. R. Crim. P. 2 in terms strictly limiting
the application of these rules to military justice._ Accord_,
Mil. R. Evid. 102.
The drafters have, whenever possible, followed the definitions used
in the United States Code. See subsection (20). Some definitions
have been made and followed for convenience, to avoid frequent repetition
of complicated phases. Others have been made to address variations in the
terminology used among the services. The drafters have attempted to minimize
the number of definitions. It is the drafters' intent that the words of the
Manual be construed in accordance with their plain meaning, with due deference
to previous usage of terms in military law or custom.
This definition was added to reduce repetitive citations to the
Uniform Code of Military Justice. MCM, 1969 (Rev.) and its predecessors used
the same convention.
This definition is based on the first two sentences of paragraph
15 a (3) of MCM, 1969 (Rev.).
2005 Amendment: The definition was amended to provide consistently with the contemporaneous amendment to R.C.M. 201(f)(1)(A)(iii)(b), which altered the default referral position for capital cases.
This definition is based on the first sentence of paragraph 15 _
a_(2) of MCM, 1969 (Rev).
This definition was added to avoid frequent repetition of "Uniform
Code of Military Justice."
This definition was added to avoid frequent repetition of the longer
phrase, "commanding officer or officer in charge." _See
_ Articles 1(3) and (4).
This definition was added to ensure that no construction of the
Manual could result in delays of cases for the sake of unavailable specialized
forms or office equipment.
Articles 16 and 39(a).
This definition is added for clarity. _Cf. United States
DoD Dir. 5550.7, Incl. 1, para. C.8 (Sep. 28, 1966).
18 U.S.C. §§ 232(5); 844(j).
18 U.S.C. § 232(4).
This definition is based on Joint Chiefs of Staff Publication 1,
Dictionary of Military and Associated Terms 187 (1 Jun 79).
This term is defined to avoid confusion about the membership of
courts-martial.
Article 1 (10). As to presidents of special courts-martial, _
see_ Mil. R. Evid. 101(c). The latter aspect was added for convenience
and brevity in drafting.
This definition was required by adoption of the texts of federal
civilian rules, which frequently use the term. The code uses the same term. _
See e.g._, Article 49. The Military Rules of Evidence also use the
term.
This term was not defined in the previous Manuals. It is defined
to avoid variations in nomenclature among the services.
"sua sponte" has been used frequently
to avoid gender-specific language ("on his or her own motion").
Its use has been limited to passages expected to be used mainly by lawyers
or with their assistance. Nonetheless, a definition is necessary for the benefit
of a president of a special court-martial without a military judge.
This definition applies only to R.C.M.1004(c)(6) and to Parts IV
and V of the Manual. Parts II (except for R.C.M. 1004(c)(6)) and III do not
use or refer to "time of war." The phrase appears in several
articles of the code, other than punitive articles. See Articles
2(a)(10); 43(a), (e), and (f); 71(b). The discussions of several rules address
"time of war" in relation to these articles. See
R.C.M. 202(a) Discussion (4); 407(b) Discussion; 907(b)(2)(B) Discussion.
"Time of war" is used in six punitive articles. See Articles
101, 105, and 106 (which define offenses that can occur only in time of war-Articles
101 and 106 are capital offenses), and Articles 85, 90, and 113 (which are
capital offenses in time of war). See also Article 82. In
addition, three offenses in Part IV use time of war as an aggravating circumstance. _
See_ paragraphs 37, 40, and 104.
The code does not define
"time of war," and Congress has not generally defined the term
elsewhere, despite the appearance of "time of war" and similar
language in many statutes. _ See e.g._, 18 U.S.C. § 3287;
37 U.S.C. §§ 301(d); 301a(c), 301(a). In at least one instance
Congress has expressly qualified the phrase "time of war" by
saying "time of war declared by Congress." 37 U.S.C. § 310(a). _
Compare_ 37 U.S.C. § 310(a) _ with_ 37
U.S.C. § 301(d); 301a(c). See also S.Rep. No.
544, 89th Cong., 1st Sess. 13 (1965) which equates "all out war"
to a declared war.
The legislative history of the code contains
few references to this matter. The only direct reference, relating to the
deletion of the phrase from Article 102, indicates that the working group
which initially drafted the code considered "time of war" to
mean "a formal state of war." _Hearings on H.R. 2498 Before
a Subcomm. of the House of Comm. on Armed Services_, 81st Cong.,
1st Sess. 1228-29 (1949). This reference is not cited in any of the
decisions of the Court of Military Appeals construing "time of war."
Judicial
decisions before the code had long recognized that a state of war may exist
without a declaration of war. See Bas. v. Tingy, 4 U.S.
(4 Dall.) 37 (1800); Hamilton v. M'Claughry, 136 F. 445
(10th Cir. 1905). See also United States v. Ayers, 4 U.S.C.M.A.
220, 15 C.M.R. 220 (1954) and cases cited therein, W. Winthrop, _
Military Law and Precedents_ 668 (2d ed. 1920 reprint)._
See generally_ Carnahan, _The Law of War in the United States
Court of Military Appeals_, 22 A.F.L. Rev. 120 (1980-81); Stevens,_
Time of War and Vietnam_, 8 A.F.JAGL.Rev. 23 (May-June 1966).
The
Court of Military Appeals has held that time of war, as used in several provisions
of the code, does not necessarily mean declared war. Under the court's analysis,
whether a time of war exists depends on the purpose of the specific article
in which the phrase appears, and on the circumstances surrounding application
of that article. See United States v. Averette, 19 U.S.C.M.A.
363, 41 C.M.R. 363 (1970) ("time of war" under Article 2(a)(10)
means declared war; court-martial jurisdiction over civilians is to be construed
narrowly); United States v. Anderson, 17 U.S.C.M.A. 558,
38 C.M.R. 386 (1968) (Vietnam war was time of war for purpose of suspension
of statute of limitations under Article 43(a)); _ accord Broussard
Patton_, 466 F.2d 816 (9th Cir. 1972)); _ United States
Anderten_, 4 U.S.C.M.A. 354, 15 C.M.R. 354 (1954) (Korean war
was time of war for purpose of Article 85); _United States v. Taylor
_, 4 U.S.C.M.A. 232, 15 C.M.R. 232 (1954) (Korean war was time of
war for purpose of suspension of statue of limitations under Article 43(f)); _
United States v. Ayers, supra_ (Korea war was time of war for purpose
of suspension of statute of limitations under Article 43(a)); _United
States v. Christensen_, 4 U.S.C.M.A. 22, 15 C.M.R. 22 (1954) (Korean
war was time of war for purpose of Article 90); _ United States v.
Bancroft_, 3 U.S.C.M.A. 3. 11 C.M.R. 3 (1953) (Korean war was time
of war for purpose of Article 113).
The circumstances the Court
of Military Appeals has examined to determine whether time of war exists
include: the nature of the conflict (generally, there must exist "armed
hostilities against an organized enemy;" _United States v.
Shell_, 7 U.S.C.M.A. 646, 650, 23 C.M.R. 110, 114 (1957)); the movement
to and numbers of United States forces in, the combat area; the casualties
involved and the sacrifices required; the maintenance of large numbers of
active duty personnel; legislation by Congress recognizing or providing for
the hostilities; executive orders and proclamations concerning the hostilities;
and expenditures in the war effort. _See United States v. Bancroft,
supra_ at 5, 11 C.M.R. at 5. _See also United States v. Anderson,
supra; United States v. Shell, supra; United States v. Sanders_,
7 U.S.C.M.A. 21, 21 C.M.R. 147 (1956);_United States v. Ayers, supra
_.
During the Korean war it was suggested that "time
of war" existed only in the Far Eastern theater. The court did not
have to decide this issue with respect to whether the death penalty was authorized
for Articles 85, 90, or 113 because the President suspended the Table of
Maximum Punishments (paragraph 117c of MCM (Army), 1949; paragraph 127c
of MCM, 1951), only in the Far Eastern command. See Exec.
Order No. 10149, 3 C.F.R. 1949-53 Comp. 326 (1950); Exec. Order No.
10247, 3 C.F.R. 1949-53 Comp. 754 (1951). _See also United States
85, 90, or 113 did not arise during the Vietnam war because the Table of
Maximum Punishments was not suspended. There are no reported cases concerning
Articles 101 and 106, and the only prosecutions under Article 105 were, of
course, for offenses arising in the theater of operations. _ See,
e.g., United States v. Dickenson_, 6 U.S.C.M.A. 438, 20 C.M.R. 154
(1955);_ United States v. Gallagher_, 23 C.M.R. 591 (A.B.R.
1957).
The Court of Military Appeals rejected the argument that
"time of war" is geographically limited with respect to Article
See also United States v. Anderson, supra._ The court's analysis
in Taylor and Ayers suggests, however,
that for some purposes "time of war" may be geographically
limited. For purposes of the death penalty, the prerequisite findings of
aggravating circumstances under R.C.M. 1004 would screen out offenses which
did not substantially affect the war effort. Therefore, possible geographic
limitations in "time of war" would be subsumed in the necessary
findings under R.C.M. 1004.
Based on the foregoing, for at least
some purposes of the punitive articles, "time of war" may exist
without a declaration of war. The most obvious example would be a major attack
on the United States and the following period during which Congress may be
unable to meet. Cf. New York Life Ins. Co. v. Bennion,
158 F.2d 260 (10th Cir. 1946), cert, denied, 331 U.S. 811
(1947). Moreover, as both the Korean and Vietnam conflicts demonstrated,
United States forces may be committed to combat of substantial proportions
and for extended periods, while for many possible reasons (_see Bas
It
should be noted that, under the article-by-article analysis used by the Court
of Military Appeals to determine whether time of war exists, "time
of war" as used in Article 106 may be narrower than in other punitive
articles, at least in its application to civilians. _See United States
The definition
does not purport to give the President power to declare war. _See
United States v. Ayers, supra_ at 227, 15 C.M.R. at 227; _
United States v. Bancroft, supra_ at 5, 11 C.M.R. at 5. Instead,
it provides a mechanism by which the President may recognize, for purposes
of removing or specifically raising the maximum limits on punishments for
certain offenses under Part IV, that a "time of war" exists.
This determination would be based on the existing circumstances. For purposes
of codal provisions triggered by "time of war," this determination
would be subject to judicial review to ensure it is consistent with congressional
intent. Cf. United States v. Bancroft, supra. Nevertheless,
a determination by the President that time of war exists for these purposes
would be entitled to great weight.
Paragraph 127c(5) of MCM,
1969 (Rev.) and the ninth paragraph 127c of MCM, 1951 provided for suspension
of the Table of Maximum Punishments as to certain articles upon a declaration
of war. The President could, and did in the Korean war, suspend the limits
the President had established for those offenses. Thus, the effect of the
definition of "time of war" in R.C.M. 103(19) is similar to the
operation of those paragraphs. In either case, a declaration of war or specific
action by the President affects the maximum punishments. The definition
under R.C.M. 103(19) also provides guidance, subject to judicial review
as noted above, on the application of codal provisions.
"Writing." Subsection (20) was added in 2008 to include electronic recording and other electronic media within the definition of "writing."
"The definitions and rules of construction in 1 U.S.C. §§ 1
through 5 and in 10 U.S.C. §§ 101 and 801." Self-explanatory.
_
1990 Amendment:_ The change to the discussion corrects a previous
typographical omission of clause (20) and misplacement of definitions of
rank and rating. The note following clause (19) is not part of the definitions
of 10 U.S.C. § 101 and was added to clarify usage of the terms
"rank" and "grade" in this Manual.
1998 Amendment: The Discussion was amended to include new definitions
of "classified information" in (14) and "national security"
in (15). They are identical to those used in the Classified Information
Procedures Act (18 U.S.C. App. III § 1, _ et. seq._).
They were added in connection with the change to Article 62(a)(1) (Appeals
Relating to Disclosure of Classified Information). See R.C.M.
908 (Appeal by the United States) and Mil. R. Evid. 505 (Classified Information).
2006 Amendment. 10 U.S.C. § 801 was amended to delete the term "law specialist" in 801(11); to change the definition of Judge Advocate in 801(13)(C) to "a commissioned officer of the Coast Guard designated for special duty (law);" and to change the definition of Coast Guard TJAG as "an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security." Public Law 109-241, title II, § 218(a)(1), July 11, 2006, 120 Stat. 256. The text of 801(11) was stricken but subsequent paragraphs were not renumbered. A note was added to explain that the Secretary of Homeland Security has designated the Chief Counsel, U.S. Coast Guard, to serve as the Judge Advocate General of the Coast Guard.
2008 Amendment. Subsection (20) was renumbered in 2008 to become subsection (21) to allow for the alphabetical insertion of the word "writing." No substantive change to this subparagraph was intended.
This rule based on Article 37 and paragraph 38 of MCM, 1969 (Rev.). _
See also United States v. Charette_, 15 M.J. 197 (C.M.A. 1983); _
United States v. Blaylock_, 15 M.J. 190 (C.M.A. 1983); _United
States v. Ledbetter_, 2 M.J. 37 (C.M.A. 1976); _United States
States v. Wright_, 17 U.S.M.A. 110, 37 C.M.R. 374 (1967); _
United States v. Hawthorne_, 7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956).
The discussion is based on H.R. Rep. No. 491, 81st Cong., 1st Sess. 21 (1949).
As to supervision of military judges and counsel, see Articles
6, 26, and 27. Subsection (b)(2)(B) is retained. It is rare that a military
judge in a special court-martial is not assigned to the judicial agency or
activity of the service concerned. See e.g., AR 27-10,
para. 8-6b (3) (Nov. 1982). Subsection (b)(2)(B) ensures that in the
unusual situation that it is necessary to detail a military judge not so
assigned, the military judge's performance of judicial duties will not be
the subject of comment or evaluation in an efficiency or fitness report prepared
or reviewed by the convening authority. The second sentence in subsection
(b)(2)(B) clarifies that the convening authority may comment only on the
military judge's nonjudicial duties in such a report. Subsection (D) is new
and clarifies that the military judge, members, and counsel are not immune
from action for any offense they might commit while in that capacity, e.g.
failure to repair.
This rule is based on Article 4 and paragraph 111 of MCM, 1969
(Rev.). See also H.R. Rep. No. 491, 81st Cong., 1st Sess.
12 (1949); W. Winthrop,_ Military Law and Precedents_ 64 (2d
ed. 1920 reprint). The text of 10 U.S.C. § 1161(a) is as follows:
by sentence of a general court-martial;
in communication of a sentence of a general court-martial;
or
This rule is new and is based on Fed. R. Crim. P. 57(a) and Article
Kelson_, 3 M.J. 139 (C.M.A. 1977). Depending on the regulations,
rules of court may be promulgated on a service-wide, judicial circuit, or
trial judge level, or a combination thereof. The rule recognizes that differences
in organization and operations of services and regional and local conditions
may necessitate variations in practices and procedures to supplement those
prescribed by the code and this Manual.
The manner in which rules
of court are disseminated is within the sole discretion of the Judge Advocate
General concerned. Service-wide rules, for example, may be published in the
same manner as regulations or specialized pamphlets or journals. Local rules
may be published in the same manner as local regulations or other publications,
for example. Parties to any court-martial are entitled to a copy, without
cost, of any rules pertaining thereto. Members of the public may obtain copies
under rules of the military department concerned. The penultimate sentence
ensures that failure to publish in accordance with the rules of the Judge
Advocate General (or a delegate) will not affect the validity of a rule if
a person has actual and timely notice or if there is no prejudice within
the meaning of Article 59. _ Cf._ 5 U.S.C. § 552(a)(1).
This rule is based on paragraph 43 of MCM, 1969, (Rev.). _
See also_ Articles 1(13), 6(a), 26, and 27. The previous rule was
limited to conduct of counsel in courts-martial. This rule also applies to
military trial and appellate judges and to all judge advocates and other
lawyers who practice in military justice, including the administration of
nonjudicial punishment and pretrial and posttrial matters relating to courts-martial.
The rule also applies to civilian lawyers so engaged, as did its predecessor.
The rule does not apply to lay persons. Nothing in this rule is intended
to prevent a military judge from excluding, in a particular case, a counsel
from representing a party before the court-martial over which the military
judge is presiding, on grounds of lack of qualifications under R.C.M. 502(d),
or to otherwise exercise control over counsel in accordance with these rules. _
See e.g._, R.C.M. 801.
1993 Amendment: Subsection
was amended to conform with subsection (c). The amendment to subsection
clarifies that the Judge Advocates General are responsible for the supervision
and discipline of judges and attorneys. The amendment to subsection (a) is
not intended to limit the authority of a Judge Advocate General in any way.
New
subsection (c) is based on Article 6a, Uniform Code of Military Justice.
Article 6a, U.C.M.J. was enacted by the Defense Authorization Act for Fiscal
Year 1990. "Military Appellate Procedures," Tit. XIII, § 1303,
National Defense Authorization Act for Fiscal Year 1990, Pub. L. No. 101-189,
103 Stat. 1352, 1576 (1989). The legislative history reveals Congressional
intent that, to the extent consistent with the Uniform Code of Military Justice,
the procedures to investigate and dispose of allegations concerning judges
in the military should emulate those procedures found in the civilian sector. _
See_ H.R. Conf. Rep. No. 331, 101st Cong., 1st Sess. 656 (1989)
[hereinafter Conf. Rep. No. 331]. The procedures established
by subsection (c) are largely patterned after the pertinent sections of
the American Bar Association's Model Standards Relating to Judicial Discipline
and Disability Retirement (1978) [hereinafter ABA Model Standard]
and the procedures dealing with the investigation of complaints against
federal judges in 28 U.S.C. § 372 (1988). The rule recognizes,
however, the overall responsibility of the Judge Advocates General for the
certification, assignment, professional supervision, and discipline of military
trial and appellate military judges. See Articles 6, 26
& 66, Uniform Code of Military Justice.
Subsection (c)(2)
is based on the committee report accompanying the FY 90 Defense Authorization
Act. See Conf. Rep. No. 331 at 658. This subsection is designed
to increase public confidence in the military justice system while contributing
to the integrity of the system. _See Landmark Communications v.
Virginia_, 435 U.S. 829 (1978).
The first sentence of
the Discussion to subsection (c)(2) is based on the committee report accompanying
the Defense Authorization Act. Conf. Rep. No. 331 at 358. The second and
third sentences of the discussion are based on the commentary to ABA Model
Standard 3.4. _ See also, Chandler v. Judicial Council_, 398
U.S. 74 (1970).
Subsection (c)(3), (c)(5), and (c)(7) reflect,
and adapt to the conditions of military practice, the general principle
that judges should investigate judges.
The first paragraph of
the Discussion to subsection (c)(3) is based on the commentary to ABA Model
Standard 4.1.
The discussion to subsection (c)(4) is based on
the commentary to ABA Model Standard 4.6.
The clear and convincing
standard found in subsection (c)(6)(c) is based on ABA Model Standard 7.10.
Under
subsection (c)(7), the principle purpose of the commission is to advise the
Judge Advocate General concerned as to whether the allegations contained
in a complaint constitute a violation of applicable ethical standards. This
subsection is not intended to preclude use of the commission for other functions
such as rendering advisory opinions on ethical questions. See ABA
Model Standard 9 on the establishment and role of an advisory committee.
Subsection
(c)(7)(a) is based on ABA Model Standard 2.3, which provides that one-third
of the members of a commission should be active or retired judges.
Introduction. The primary source of court-martial
jurisdiction is Art. I, sec. 8, cl. 14 of the Constitution, which empowers
Congress to make rules for the government and regulation of the armed forces
of the United States. Courts-martial are recognized in the provisions of
the fifth amendment expressly exempting "cases arising in the land
or naval forces" from the requirement of presentment and indictment
by grand jury. See also Part I, Preamble, for a fuller
discussion of the nature of courts-martial and the sources of their jurisdiction.
Subsection (1) reiterates the first sentence of the second paragraph
of paragraph 8 of MCM, 1969 (Rev.). The discussion is based on paragraph
8 of MCM, 1969 (Rev.). _ Cf._ Fed R. Crim. P. 7(c)(2); 18 U.S.C.
§§ 3611-20. Courts-martial generally have the power
to resolve issues which arise in connection with litigating criminal liability
and punishment for offenses, to the extent that such resolution is necessary
to a disposition of the issue of criminal liability or punishment.
Subsection
The discussion points out that, despite the worldwide applicability of the
code, geographical considerations may affect court-martial jurisdiction. _
See_ R.C.M. 202 and 203.
Subsection (3) restates the
third paragraph of paragraph 8 of MCM, 1969 (Rev.). _See also Chenoweth
held that Art. III, sec, 2, cl. 3 of the Constitution (requiring crimes to
be tried in the state in which committed) does not apply to courts-martial.
The second sentence is based on Article 18. _See also Geneva Convention
Relative to the Protection of Civilian Persons in Time of War_,
August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365.
This rule is derived from the fourth paragraph of paragraph 8 of
MCM, 1969 (Rev.). The first sentence in the rule is new. _See Rosado
_, 12 M.J. 145, 152 n.8 (C.M.A. 1981). _Cf. Ex parte Poresky
_, 290 U.S. 30 (1933). The rule expands the list of requisites for
court-martial jurisdiction to conform more accurately to practice and case
law. Requisite (3) has been added to reflect the distinction, long recognized
in military justice, between creating a court-martial by convening it, and
extending to a court-martial the power to resolve certain issues by referring
charges to it. Thus, a court-martial has power to dispose only of those offenses
which a convening authority has referred to it. Not all defects in a referral
are jurisdictional. See United States v. Blaylock, 15 M.J.
190 (C.M.A. 1983). Requisite (5) is listed separately for the first time.
This requisite makes clear that courts-martial have the power to hear only
those cases which they are authorized by the code to try (i.e., offenses
made punishable by the code, and, in the case of general courts-martial,
certain offenses under the law of war). Second, it recognizes the important
effect of O'Callahan v. Parker, 395 U.S. 258 (1969),
on courts-martial. Although nothing in this rule or R.C.M. 203 is intended
to codify the service-connection requirement of O'Callahan or
later decisions, the requirement cannot be ignored in the Manual for Courts-Martial.
Requisites
See Generally United States v. Ryan_, 5 M.J. 97 (C.M.A. 1978); _
United States v. Newcomb_, 5 M.J. 4 (C.M.A. 1978). Contrary to the
holdings in Ryan and_ Newcomb_, "errors
in the assignment or excusal of counsel, members, or a military judge that
do not affect the required composition of a court-martial will be tested
solely for prejudice under Article 59." S.Rep. No. 53, 98th Cong.,
1st Sess. 12 (1983). The second sentence of subsection (2) makes this clear,
and also emphasizes that counsel is not a jurisdictional component of a
court-martial. See Wright v. United States, 2 M.J. 9 (C.M.A.
1976). Requisite (4) is somewhat broader than the statement in MCM, 1969
(Rev.), since jurisdiction over the person has been affected by judicial
decisions. _See e.g., McElroy v. United States ex. rel. Guagliardo
_, 361 U.S. 281 (1960); Reid v. Covert, 354 U.S.
1 (1957); _ United States v. Averette_, 19 U.S.C.M.A. 363,
41 C.M.R. 363 (1970). Thus it is misleading to refer solely to the code as
determining whether jurisdiction over the person exists. The discussion restates
the basic principle that the judgment of a court-martial without jurisdiction
is void.
This subsection restates Article 48, except for the deletion of
military commissions and provost courts. These tribunals are also governed
by Article 48, but need to be mentioned in rules pertaining to courts-martial.
Subsection (d) is based on paragraph 12 of MCM, 1969 (Rev.). Military
offenses are those, such as unauthorized absence, disrespect, and disobedience,
which have no analog in civilian criminal law. The second paragraph of paragraph
12 is omitted here, as the subject now appears at R.C.M. 106. Concurrent
jurisdiction of courts-martial and domestic tribunals was formerly discussed
separately from concurrent jurisdiction of courts-martial and foreign tribunals.
The present rule treats both at once since, for purposes of the rule, each
situation is treated the same. The differing considerations and legal implications
in the domestic and foreign situations are treated in the discussion. _
See_ R.C.M. 907(b)(2)(c) for a discussion of the former jeopardy
aspects of exercise of jurisdiction by more than one agency or tribunal.
With respect to the exercise of jurisdiction by the United States or a foreign
government._ Wilson v. Girard_, 354 U.S. 524 (1957), establishes
that the determination of which nation will exercise jurisdiction is not
a right of the accused.
The first paragraph in the discussion
reaffirms the policy found in DOD Directive 5525.1, Jan. 22, 1966 (superseded
by DOD Directive 5525.1, Aug. 7, 1979), which is implemented by a triservice
regulation, AR 27-50/SECNAVINST 5820.4E/AFR 110-12, Dec. 1,
1978, that the United States seeks to maximize jurisdiction over its personnel.
The
second paragraph in the discussion restates the third paragraph in paragraph
12 of MCM, 1969 (Rev.), which was based on _The Schooner Exchange
See also Wilson v. Girard, supra._
This subsection is based on Article 17 and paragraph 13 of MCM,
1969 (Rev.). It continues the express presidential authorization for the
exercise of reciprocal jurisdiction and the delegation of authority (Article
or task forces to exercise such power. _See United States v. Hooper
_, 5 U.S.C.M.A. 391, 18 C.M.R. 15 (1955). It also continues the
guidance in MCM, 1969 (Rev.) concerning the exercise of reciprocal jurisdiction
by commanders other than those empowered under R.C.M. 201(e)(2). The language
is modified to clarify that manifest injury is not limited to a specific
armed force. The subsection adds a clarification at the end of subsection
the accused's is not jurisdictionally defective nor is the service of which
the convening authority is a member an issue in which the accused has a
recognized interest. The rule and its guidance effectuate the congressional
intent that reciprocal jurisdiction ordinarily not be exercised outside of
joint commands or task forces (_Hearings on H.R. 2498 Before a Subcommittee
of the House Committee on Armed Services_, 81st Cong., 1st Sess.
612-615; 957-958 (1949)) and is designed to protect the integrity
of intraservice lines of authority. _See United States v. Hooper,
supra_ (Brosman, J. and Latimer, J., concurring in the result).
_
1986 Amendment:_ Subsections (e)(2) and (e)(3) were revised to implement
the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99 - 433, tit. II, § 211(b), 100 Stat. 992. Because commanders
of unified and specified commands (the combatant commands) derive court-martial
convening authority from Article 22(a)(3), as added by this legislation,
they need not be established as convening authorities in the Manual.
Paragraph
(2)(A), which sets forth the authority of the combatant commanders to convene
courts-martial over members of any of the armed forces, is an exercise of
the President's authority under Article 17(a). In paragraph (2)(B), the
first clause is a delegation from the President to the Secretary of Defense
of the President's authority to designate general court-martial convening
authorities. This provision, which reflects the current Manual, may be used
by the Secretary of Defense to grant general court-martial convening authority
to commanders of joint commands or joint task forces who are not commanders
of a unified or specified command. The second clause of paragraph 2(b) is
an exercise of the President's authority under Article 17(a).
Nothing
in this provision affects the authority of the President or Secretary of
Defense, as superior authorities, to withhold court-martial convening authority
from the combatant commanders in whole or in part.
2005 Amendment: This rule clarifies that when a service member is tried by a court-martial convened by a combatant or joint commander, the implementing regulations and procedures of the service to which the accused is a member shall apply.
2005 Amendment: Subsections (e)(2)(B) and (C) were revised to clarify that the reciprocal jurisdiction authority of joint commanders designated in either subsections (A), (B), or (C), is limited. This limitation is intended to preclude a joint commander from convening courts upon members who are not assigned or attached to a joint command.
Subsection (4) has been added to avoid possible questions concerning detailing military
judges from different services.
2005 Amendment: Subsection (e)(4) was amended to clarify that members and counsel from different services may be detailed to a court-martial convened by a combatant or joint commander.
Subsection (5) restates Article
17(b).
1986 Amendment: Subsection (6) was inserted
in the context of the Goldwater-Nichols Department of Defense Reorganization
Act of 1986, Pub. L. No. 99-433, tit. II, 100 Stat. 992, to specify the process
for resolving disagreements when two organizations, at the highest levels
of each, assert competing claims for jurisdiction over an individual case
or class of cases. Under this legislation, the commanders of unified and
specified commands are authorized to convene courts-martial. At the same
time, the military departments retain authority over all aspects of personnel
administration, including administration of discipline, with respect to all
persons assigned to joint duty or otherwise assigned to organizations within
joint commands. In effect, the combatant commands and the military departments
have concurrent jurisdiction over persons assigned to such commands. Under
most circumstances, any issues as to jurisdiction will be resolved between
the military department and the joint command. Paragraph (6) has been added
to provide a means for resolving the matter when the Service Secretary and
the commander of the joint organization cannot reach agreement. _
See_ H.R. Rep. No. 824, 99th Cong., 2d Sess. (1986), at 125. Paragraph
between two Service Secretaries as to the exercise of reciprocal jurisdiction.
Subsection
retain responsibility for the administration of discipline, including responsibility
for all persons in their departments assigned to joint duty.
Paragraphs
or when he is seeking to assert jurisdiction over a member of a different
armed force. There are various provisions of the Manual addressing the duties
or responsibilities of superior authorities, and it was considered more
useful to establish who may act as a superior authority as a general proposition
rather than to specify in great detail the relationship between joint commanders
and Service Secretaries as to each such matter. Accordingly, when action
is required to be taken by an authority superior to a combatant commander,
the responsibility is given to the Secretary of the Military Department that
includes the armed force of which the accused is a member. This includes
responsibility for acting on matters such as a request for counsel of the
accused's own selection. An exception is expressly set forth in paragraph
(6), however, which specifically provides the procedure for resolving disagreements
as to jurisdiction. The Service Secretary cannot withhold or limit the exercise
of jurisdiction under R.C.M. 504(b) or under Part V (Nonjudicial Punishment
Procedure) by a combatant commander over persons assigned to the joint command.
Such action may be taken, however, by the Secretary of Defense, who may
assign responsibility to the military department or the unified command for
any case or class of cases as he deems appropriate.
The amendments
to R.C.M. 201 are designed to govern organizational relationships between
joint commands and military departments over a range of issues, and are not
intended to confer rights on accused servicemembers. These provisions reflect
the President's inherent authority as Commander-in-Chief to prescribe or
modify the chain of command, his specific authority under Article 17 to
regulate reciprocal jurisdiction, and his authority (and that of the Secretary
of Defense) under 10 U.S.C. §§ 161-65 (as added by the 1986
legislation) to prescribe or modify the chain of command.
To
the extent that a commander of a joint organization is "dual-hatted"
(i.e., simultaneously serving as commander of a joint organization and
a separate organization within a military department), subsections (6) and
The source for subsection (1) is Article 18. This subsection is
substantially the same as paragraph 14 of MCM, 1969 (Rev.), although it
has been reorganized for clarity. Several statements in MCM, 1969 (Rev.)
concerning punishments by general courts-martial have been placed in the
discussion. As to the second sentence in subsection (1)(A)(i), _
see also Wickham v. Hall_, 12 M.J. 145 (C.M.A. 1983); _Wickham
The source for
subsection (2) is Article 19. Subsection (2) is based on paragraph 15 of
MCM, 1969 (Rev.), although it has been reorganized for clarity. Note that
under subsection (2)(C)(ii) a general court-martial convening authority
may permit a subordinate convening authority to refer a capital offense to
a special court-martial. This is a modification of paragraph 15 _
a_(1) of MCM, 1969 (Rev.), which said a general court-martial convening
authority could "cause" a capital offense to be referred to
a special court-martial without specifying whether the convening authority
had to make the referral personally. Subsection (2)(C)(iii) permits the
Secretary concerned to authorize special court-martial convening authorities
to refer capital offense to special courts-martial without first getting
authorization from a general court-martial convening authority. Several
statements in MCM, 1969 (Rev.) have been placed in the discussion.
_
2002 Amendment:_ Subsections (f)(2)(B)(i) and (f)(2)(B)(ii) were
amended to remove previous limitations and thereby implement the amendment
to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65,
113 Stat. 512 (1999). Subject to limitations prescribed by the President,
the amendment increased the jurisdictional maximum punishment at special
courts-martial to confinement for one year and forfeitures not exceeding
two-thirds pay per month for one year, vice the previous six-month jurisdictional
limitation.
As to subsection (3) summary courts-martial are treated
separately in R.C.M. 1301-1306.
_
2005 Amendment_: Subsection (1)(A)(iii)(b) was changed to reflect that a convening authority must affirmatively act to refer a capital punishment eligible offense for trial as a capital case. Changing the default referral position for capital cases is consistent with the federal criminal practice of requiring affirmative steps before a case can be referred as capital, see, e.g., United States Attorneys' Manual, Chapter 9-10.000, as well as the affirmative steps required of the government in order to refer a court-martial as capital. It also provides a default construct that is applicable to the vast majority of actual capital eligible cases.
2015 Amendment: R.C.M. 201(f)(2)(D) was created to implement Section 1705 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. Sec. 1705(c), P.L. 113-66.
This subsection is based on the last paragraph in paragraph 12 of
MCM, 1969 (Rev.).
2015 Amendment: The discussion was amended in light of Solorio v. United States, 483 U.S. 435 (1987). O'Callahan v. Parker, 395 U.S. 258 (1969), held that an offense under the Code could not be tried by court-martial unless the offense was "service connected." Solorio overruled O'Callahan. The struck language was inadvertently left in prior revisions of the Manual.
This subsection incorporates by reference the provisions of the
code (see Articles 2, 3, 4, and 73) which provide jurisdiction
over the person. See also Articles 83, 104, 106. The discussion
under this subsection briefly described some of the more important requirements
for court-martial jurisdiction over persons. Standards governing active duty
servicemembers (Article 2(a)(1)) are emphasized, although subsection (4)
brings attention to limitations on jurisdiction over civilians established
by judicial decisions.
Subsection (2)(A) of the discussion dealing
with inception of jurisdiction over commissioned officers, cadets, midshipmen,
warrant officers, and enlisted persons is divided into three parts. The first
part, enlistment, summarizes the area of the law in the wake of the amendment
of Article 2 in 1979. Act of November 9, 1979, Pub. L. No. 96-107,
§ 801(a), 93 Stat. 810-11. In essence, the amendment eliminated
recruiter misconduct as a factor of legal significance in matters involving
jurisdiction, and reestablished and clarified the "constructive enlistment"
doctrine. The statutory enlistment standards concerning capacity under
10 U.S.C. §§ 504 and 505 thus become critical, along with
the issue of voluntariness. As to whether an enlistment is compelled or
voluntary,_ compare United States v. Catlow_, 23 U.S.C.M.A.
142, 48 C.M.R. 758 (1974) with United States v. Wagner, 5
M.J. 461 (C.M.A. 1978) and United States v. Lightfoot, 4
M.J. 262 (C.M.A. 1978). See also United States v. McDonagh,
14 M.J. 415 (C.M.A. 1983).
The second paragraph under (i)_
Enlistment_ is based on _ United States v. Bean_,
13 U.S.C.M.A. 203, 32 C.M.R. 203 (1962); _United States v. Overton
_, 9 U.S.C.M.A. 684, 26 C.M.R. 464 (1958); and 10 U.S.C. § 1170.
The last sentence is based on Article 2(c) which provides that in case
of constructive enlistment, jurisdiction continues until "terminated
in accordance with law or regulations promulgated by the Secretary concerned."
The
last paragraph restates Article 2(c). The last sentence of that paragraph
takes account of the legislative history of Article 2(c). See S.Rep.
No. 197, 96th Cong., 1st Sess. 122 (1979), which indicates that _
United States v. King_, 11 U.S.C.M.A. 19, 28 C.M.R. 243 (1959) is
overruled by the statute. This is also reflected in the first paragraph under
The first paragraph of (ii)_
Induction_ is (with the exception of the application of the constructive
enlistment doctrine,see the immediately preceding paragraph)
based on United States v. Hall, 17 C.M.A. 88, 37 C.M.R.
352 (1967); United States v. Rodriguez, 2 U.S.C.M.A. 101,
6 C.M.R. 101 (1952); United States v. Ornelas, 2 U.S.C.M.A.
96 C.M.R. 96 (1952). See also Billings v. Truesdell, 321
U.S. 542 (1944); Mayborn v. Heflebower, 145 F.2d 864 (5th
Cir. 1944), cert. denied, 325 U.S. 854 (1945).
The
second paragraph under (ii) Induction is based on _
United States v. Scheunemann_, 14 U.S.C.M.A. 479, 34 C.M.R. 259
(1964). See also United States v. Wilson, 44 C.M.R. 891 (A.C.M.R.
1971). Although no military case has so held, dicta and _
Scheunemann_ supports the second sentence.
As to (iii) _
Call to active duty, see_ 10 U.S.C. §§ 672, 673
and 673(a). See also United States v. Peel, 4 M.J. 28 (C.M.A.
1977). The second paragraph of this section reflects decisions in _
United States v. Barraza_, 5 M.J. 230 (C.M.A. 1978) and _United
States v. Kilbreth_, 22 U.S.C.M.A. 390, 47 C.M.R. 327 (1973).
_
1986 Amendment:_ Paragraph (2)(A)(iii) of the Discussion was amended
and paragraph (5) was added to reflect amendments to Articles 2 and 3 of
the UCMJ contained in the "Military Justice Amendment of 1986,"
tit. VIII, § 804, National Defense Authorization Act for fiscal
year 1987, Pub. L. No. 99-661, 100 Stat. 3905 (1986), which, among
other things, preserves the exercise of jurisdiction over reservists for
offenses committee in a duty status, notwithstanding their release from duty
status, if they have time remaining on their military obligation. The legislation
also provides express statutory authority to order reservists, including
members of the National Guard of the United States and the Air National Guard
of the United States who commit offenses while serving on duty under Title
10 of the United States Code, to active duty for disciplinary action, including
the service of any punishment imposed.
The first paragraph under
(B)Termination of jurisdiction over active duty personnel
restates the basic rule. See United States v. Brown, 12
U.S.C.M.A. 693, 31 C.M.R. 297 (1962); United States v. Scott,
11 U.S.C.M.A. 646, 29 C.M.R. 462 (1960). _See also United States
Subsection
(B)(i) is based on United States v. Wheeley, 6 M.J. 220
(C.M.A. 1979); United States v. Smith, 4 M.J. 265 (C.M.A.
1978); United States v. Hutchins, 4 M.J. 190 (C.M.A. 1978); _
United States v. Hout_, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970). _
See also Dickenson v. Davis_, 245 F.2d 317 (10th Cir. 1957).
Subsection
(B)(ii) describes what jurisdiction remains under Article 3(a) in light of _
United States ex rel. Toth v. Quarles_, 350 U.S. 11 (1955). _
See also United States v. Clardy_, 13 M.J. 308 (C.M.A. 1982).
The
exceptions is subsection (B)(iii) are restated in slightly different language
for clarity from paragraph 11 b of MCM, 1969 (Rev.). Exception
(_ b_) is based on _United States v. Clardy, supra.
See also_ 14 M.J. 123 (C.M.A. 1982). As to exception (c), jurisdiction
over prisoners in the custody of the armed forces, _ see Kahn v. Anderson
_, 255 U.S. 1 (1921); United States v. Nelson, 14
U.S.C.M.A. 93, 33 C.M.R. 305 (1963). See also Mosher v. Hunter,
143 F.2d 745 (10th Cir. 1944), cert. denied, 323 U.S.
800 (1945). Although it has not been judicially interpreted, the sentence
of paragraph 11_b_ of MCM, 1969 (Rev.) has been included
here. The principle it expressed has long been recognized. See the
last sentence in paragraph 11_b_ of MCM, 1951; the last
sentence of the third paragraph of paragraph 10 of MCM (Army), 1949; and
the last sentence of the fourth paragraph of paragraph 10 of MCM, 1928. As
to jurisdiction under Article 3(b), see Wickham v. Hall,
12 M.J. 145 (C.M.A. 1981); Wickham v. Hall, 706 F.2d 713
(5th Cir. 1983).
Subsection (3) described the jurisdiction under
Article 2(a)(8). See also 33 U.S.C. § 855;
42 U.S.C. § 217.
Subsection (4) of the discussion
points out that jurisdiction over civilians has been restricted by judicial
decisions. See generally Reid v. Covert, 354 U.S. 1 (1957); _
Toth v. Quarles, supra_. The MCM 1969 (Rev.) referred to such limitations
only in footnotes to Articles 2(a)(10) and (11) and 3(a). The discussion
of R.C.M. 202 is a more appropriate place to bring attention to these matters.
A brief reference in the discussion was considered sufficient, while the
analysis provides primary sources of law in the area, should an issue arise
on the subject.
The second sentence in the subsection (4) of discussion
is based on McElroy v. United States ex rel. Guagliardo,
361 U.S. 281 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); _
Kinsella v. United States ex rel. Singleton_, 361 U.S. 234 (1960); _
Reid v. Covert, supra_. It is not settled whether "peacetime"
as used in these decisions means all times other than a period of declared
war or whether "peacetime" ceases when armed forces are involved
in undeclared wars or hostilities. There is some authority for the latter
view. See W. Winthrop, _Military Law and Precedents,
_ 101 (2d ed. 1920 reprint).
With respect to Article
2(a)(10), the Court of Military Appeals has held that "time of war"
means a formally declared war (based on U.S. Const., art. I, sec. 8, cl.
11). United States v. Averette, 19 U.S.C.M.A. 363, 41
C.M.R. 363 (1970). But cf. Latney v. Ignatius, 416 F.2d
821 (D.C. Cir. 1969) (assuming without deciding that Article 2(a)(10) could
be invoked during period of undeclared war, no court-martial jurisdiction
existed over civilian merchant seaman for murder in Vietnam because crime
and accused were not sufficiently connected with the military). _
See also_ Analysis, R.C.M. 103(19).
The words "in
the field" and "accompanying an armed force" have also
been judicially construed. "In the field" implies military operations
with a view to the enemy. 14 Ops. Atty Gen. 22 (1872). The question whether
an armed force is "in the field" is not to be determined by the
locality in which it is found, but rather by the activity in which it is
engaged. Hines v. Mikell, 259 F.28, 34 (4th Cir. 1919).
Thus, forces assembled in the United States for training preparatory for
service in the actual theater of war were held to be "in the field." _
Hines v. Mikell, supra_. A merchant ship and crew transporting troops
and supplies to a battle zone constitute a military expedition "in
the field." In re Berue, 54 F. Supp. 252 (S.D. Ohio
1944); McCune v. Kilpatrick, 53 F.Supp. 80 (E.D. Va. 1943). _
See also Ex parte Gerlach_, 247 F.616 (S.D.N.Y. 1917); _United
States v. Burney_, 6 U.S.C.M.A. 776, 21 C.M.R. 98 (1956); _
Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services
_, 81st Cong., 1st Sess. 872-3 (1949). But see,
W. Winthrop, supra at 100-102; _Reid v. Covert,
supra_ at 34 n. 61.
One may be "accompanying an
armed force" although not directly employed by it or the Government.
For example, an employee of a contractor engaged on a military project or
serving on a merchant ship carrying supplies or troops is "accompanying
an armed force." Perlstein v. United States, 151 F.2d
167 (3d Cir. 1945), cert. dism., 328 U.S. 822 (1946); _
In re DiBartolo_, 50 F.Supp. 929 (S.D.N.Y. 1943); _In re Berue,
supra; McCune v. Kilpatrick, supra._ To be "accompanying an
armed force" one's presence within a military installation must be
more than merely incidental; it must be connected with or dependent upon
the activities of the armed forces or its personnel. Although a person "accompanying
an armed force" may be "serving with" it as well, the
distinction is important because even though a civilian's contract with the
Government ended before the commission of an offense, and hence the person
is no longer "serving with" an armed force, jurisdiction may
remain on the ground that the person is "accompanying an armed force"
because of continued connection with the military. _Perlstein v.
United States, supra; Grewe v. France_, 75 F.Supp. 433 (E.D. Wis.
1948).
McElroy v. Guagliardo, supra at 285-87,
discusses possible methods for extending court-martial jurisdiction over
civilians in some circumstances. To date these methods remain undeveloped. _
See also_ Everett and Hourcle, _Crime Without Punishment-Ex-servicemen,
Civilian Employees and Dependents_, 13 A.F.JAG L. Rev. 184 (1971).
Civilians may be tried by general court-martial under Article 18 and the
law of war. See R.C.M. 201(f)(1)(B); 202(b). _See
also_ Article 21. This includes trial by court-martial in places
where the United States is an occupying power. _See e.g., Madsen
of military commission to try a dependent spouse in occupied Germany in
see_ Proclamation No. 2950, 3 C.F.R. (1948-53 Comp.) 135
(1951)) hostilities were declared terminated on 31 December 1946 (_
see_ Proclamation No. 2714, 3 C.F.R. (1948-53 Comp.) 99 (1947))
and the United States Supreme Court observed in dicta that military courts
might have jurisdiction in occupied territory even in peacetime, 343 U.S.
at 360)]. See also Wilson v. Bohlender, 361 U.S.
281, 283 n. 2 (1960); Kinsella v. Singleton, supra at 244.
This subsection is based on Article 18. See also
Article 21. The phrase "offense subject to trial by court-martial"
or "offense triable by court-martial" is used in the R.C.M.
in recognition of the fact that the Manual for Courts-Martial governs courts-martial
for offenses under the law of war as well as under the code. _See
e.g._, R.C.M. 301(b); 302(c); 304(c); 305(d). In such contexts,
the phrase does not include a requirement for a jurisdictional determination.
This subsection is based on paragraph 11_d_ of MCM,
1969 (Rev.), and states the basic principle that once the jurisdiction of
a court-martial attaches, it continues until the process of trial, appeal,
and punishment is complete. _See generally United States v. Douse
_, 12 M.J. 473 (C.M.A. 1982); United States v. Sippel,
4 U.S.C.M.A. 50, 15 C.M.R. 50 (1954).
The discussion clarifies
the distinction between the existence of personal jurisdiction and the attachment
of jurisdiction. Compare United States v. Douse, supra at
479 (Everett, C.J., concurring in the result); _United States v. Wheeley
_, 6 M.J. 220 (C.M.A. 1979); United States v. Hutchins,
4 M.J. 190 (C.M.A. 1978); and United States v. Hout, supra (opinion
of Quinn, C.J.) with United States v. Douse, supra (opinion
of Cook, J.); United States v. Smith, 4 M.J. 265 (C.M.A.
1978); United States v. Hout, supra at 302; 41 C.M.R. 299,
302 (1970) (Darden, J., concurring in the result); and _United States
See also_ W. Winthrop, supra at 90-91.
Subsection
taken from paragraph 11 d of MCM, 1969 (Rev.) although "filing
of charges" has been clarified to mean preferral of charges. _
See United States v. Hout, supra._ This list is not exhaustive. _
See United States v. Self_, 13 M.J. 132 (C.M.A. 1982); _United
States v. Douse, supra; United States v. Smith, supra. See also United States
Fitzpatrick_, 14 M.J. 394 (C.M.A. 1983); _United States
Handy_, 14 M.J. 202 (C.M.A. 1982); _United States v.
Wheeley, supra; United States v. Rubenstein, supra; United States v. Mansbarger
_, 20 C.M.R. 449 (A.B.R. 1955).
This rule is intended to provide for the maximum possible court-martial
jurisdiction over offenses. Since the constitutional limits of subject-matter
jurisdiction are matters of judicial interpretation, specific rules are
of limited value and may unnecessarily restrict jurisdiction more than is
constitutionally required. Specific standards derived from current case
law are treated in the discussion.
The discussion begins with
a brief description of the rule under O'Callahan v. Parker,
395 U.S. 258 (1969). It also describes the requirements established in _
United States v. Alef_, 3 M.J. 414 (C.M.A. 1977) to plead and prove
jurisdiction. See also R.C.M. 907(b)(1)(A). The last three
sentences in subsection (b) of the discussion are based on _United
States v. Lockwood_, 15 M.J. 1 (C.M.A. 1983). The remainder of the
discussion reflects the Working Group's analysis of the application of service-connection
as currently construed in judicial decisions. It is not intended as endorsement
or criticism of that construction.
Subsection (c) of the discussion
lists the Relford factors, which are starting points in
service-connection analysis, although the nine additional considerations in
Relford are also significant. These factors are not exhaustive. _
United States v. Lockwood, supra. See also United States v. Trottier_,
9 M.J. 337 (C.M.A. 1980). _ Relford_ itself establishes the
basis for (c)(2) and (c)(3) of the discussion. It has never been seriously
contended that purely military offenses are not service-connected per se. _
See Relford_ factor number 12. Decisions uniformly have held that
offenses committed on a military installation are service-connected. _
See, e.g., United States v. Hedlund, supra; United States v. Daniels_,
19 U.S.C.M.A. 529, 42 C.M.R. 131 (1970). See Relford factors
2, 3, 10, and 11. As to the third sentence in (c)(3), _see United
States v. Seivers_, 8 M.J. 63 (C.M.A. 1979); _United States
_, 18 U.S.C.M.A. 594, 40 C.M.R. 306 (1969); _Harkcom v. Parker
_, 439 F.2d 265 (3d Cir. 1971). With respect to the fourth sentence
of (c)(3), _see United States v. Hedlund, supra; United States v.
Riehle_, 18 U.S.C.M.A. 603, 40 C.M.R. 315 (1969). _But cf.
United States v. Lockwood, supra._ Although much of the reasoning
in United States v. McCarthy, 2 M.J. 26 (C.M.A. 1976) has
been repudiated by United States v. Trottier, supra, the
holding of McCarthy still appears to support the penultimate
sentence in (c)(3). _See also United States v. Lockwood, supra; United
States v. Gladue_, 4 M.J. 1 (C.M.A. 1977). The last sentence is
based on United States v. Lockwood, supra.
The
discussion of drug offenses in (c)(4) is taken from _ United States
As to (c)(5), the first sentence
is based on _ United States v. Lockwood, supra_. Whether
the military status of the victim or the accused's use of military identification
card can independently support service-connection is not established by the
holding in Lockwood. The second sentence is based on _
United States v. Whatley_, 5 M.J. 39 (C.M.A. 1978); _United
States v. Moore_, 1 M.J. 448 (C.M.A. 1976). The last sentence is
based on United States v. Conn, supra; United States v. Borys,
18 U.S.C.M.A. 547, 40 C.M.R. 259 (1969) (officer status of accused does
not establish service-connection under Article 134) (note: service-connection
of Article 133 offenses has not been judicially determined); _United
States v. Saulter_, 5 M.J. 281 (C.M.A. 1978); _United States
establish service-connection); United States v. Armes, 19
U.S.C.M.A. 15, 41 C.M.R. 15 (1969) (wearing uniform during commission of
offense does not establish service-connection).
Subsection (c)(6)
of the discussion indicates that virtually all offenses by servicemembers
in time of declared war are service-connected. There is little case authority
on this point. The issue was apparently not addressed during the conflict
in Vietnam; of course, the overseas exception provided jurisdiction over
offenses committed in the theater of hostilities. The emphasis in _
O'Callahan_ on the fact that the offenses occurred in peacetime
(see Relford factor number 5) strongly suggests a different
balance in time of war. Furthermore, in Warner v. Flemings,
a companion case decided with _ Gosa v. Mayden_, 413 U.S.
665 (1973), Justices Douglas and Stewart concurred in the result in upholding
Flemings' court-martial conviction for stealing an automobile while off
post and absent without authority in 1944, on grounds that such an offense,
during a congressionally declared war, is service-connected. The other Justices
did not reach this question. Assigning Relford factor number
5 such extensive, indeed controlling, weight during time of declared war
is appropriate in view of the need for broad and clear jurisdictional lines
in such a period.
Subsection (d) of the discussion lists recognized
exceptions to the service-connection requirement. The overseas exception
was first recognized in United States v. Weinstein, 19 U.S.C.M.A.
29, 41 C.M.R. 29 (1969). See also United States v. Keaton,
19 U.S.C.M.A. 64, 41 C.M.R. 64 (1969). The overseas exception flows from _
O'Callahan's_ basic premise: that the service-connection requirement
is necessary to protect the constitutional right of service members to indictment
by grand jury and trial by jury. While this premise might not be evident
from a reading of O'Callahan alone, the Supreme Court subsequently
confirmed that this was the basis of the O'Callahan rule. _
See Gosa v. Mayden, supra_ at 677. Since normally no civilian court
in which the accused would have those rights is available in the foreign
setting, the service-connection limitation does not apply.
The
situs of the offense, not the trial, determines whether the exception may
apply. United States v. Newvine, 23 U.S.C.M.A. 208, 48 C.M.R.
960 (1974); United States v. Bowers, 47 C.M.R. 516 (A.C.M.R.
1973). The last sentence in the discussion of the overseas exception is
based on United States v. Black, 1 M.J. 340 (C.M.A. 1976). _
See also United States v. Gladue_, 4 M.J. 1(C.M.A. 1977); _
United States v. Lazzaro_, 2 M.J. 76 (C.M.A. 1976). Some federal
courts have suggested that the existence of court-martial jurisdiction over
an overseas offense does not depend solely on the fact that the offense
is not cognizable in the United States civilian courts. _See Hemphill
States v. King_, 6 M.J. 553 (A.C.M.R. 1978), _pet. denied
_, 6 M.J. 290 (1979).
Several Federal courts which have
addressed this issue have also held that the foreign situs of a trial is
sufficient to support court-martial jurisdiction, although the rationale
for this result has not been uniform. _See e.g., Williams v. Froehlke
_, 490 F.2d 998 (2d Cir. 1974); Wimberly v. Laird,
472 F.2d 923 (7th Cir.), cert. denied, 413 U.S. 921 (1973); _
Gallagher v. United States_, 423 F.2d 1371 (Ct. Cl.), _ cert.
denied_, 400 U.S. 849 (1970); Bell v. Clark, 308
F.Supp. 384 (E.D. Va. 1970), aff'd, 437 F.2d 200 (4th Cir.
1971). As several of these decisions recognize, the foreign situs of an
offense is a factor weighing heavily in favor of service-connection even
without an exception for overseas offenses. See Relford factors
4 and 8. The logistical difficulties, the disruptive effect on military activities,
the delays in disposing of offenses, and the need for an armed force in a
foreign country to control its own members all militate toward service-connection
for offenses committed abroad. Another consideration, often cited by the
courts, is the likelihood that if the service-connection rule were applied
overseas as it is in the United States, the practical effect would be far
more frequent exercise of jurisdiction by host nations, thus depriving the
individual of constitutional protections the rule is designed to protect.
The
petty offenses exception rests on a similar doctrinal foundation as the overseas
exception. Because there is no constitutional right to indictment by grand
jury or trial by jury for petty offenses (_see Baldwin v. New York
_, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S.
145 (1968); Duke v. United States, 301 U.S. 492 (1937));
the service-connection requirement does not apply to them. _United
States v. Sharkey_, 19 U.S.C.M.A. 26, 41 C.M.R. 26 (1969). _
Under Baldwin v. New York, supra_, a petty offense is one in which
the maximum sentence is six months confinement or less. Any time a punitive
discharge is included in the maximum punishment, the offense is not petty. _
See United States v. Smith_, 9 M.J. 359, 360 n.1 (C.M.A. 1980); _
United States v. Brown_, 13 U.S.C.M.A. 333, 32 C.M.R. 333 (1962).
_
Sharkey_ relied on the maximum punishment under the table of maximum
punishments in determining whether an offense is petty. It is the view of
the Working Group that offenses tried by summary courts-martial and special
courts-martial at which no punitive discharge may be adjudged are "petty
offenses" for purposes of O'Callahan, in view of the
jurisdictional limitations of such courts. Whether the jurisdictional limits
of a summary of such special court-martial makes an offense referred to
such a court-martial petty has not been judicially determined.
_
1995 Amendment :_ The discussion was amended in light of _
Solorio v. United States,_ 483 U.S. 435 (1987). _O'Callahan
code could not be tried by court-martial unless the offense was "service
connected." Solorio overruled O'Callahan.
1987 Amendment: R.C.M. 204 and its discussion
were added to implement the amendments to Articles 2 and 3, UCMJ, contained
in the "Military Justice Amendments of 1986," tit. VIII, §
804, National Defense Authorization Act for fiscal year 1987, Pub. L. No.
99-661, 100 Stat. 3905 (1986). Use of the term "member of a reserve
component" in Article 3(d) means membership in the reserve component
at the time disciplinary action is initiated. The limitation in subsection
(b)(1) restricting general and special courts-martial to periods of active
duty is based upon the practical problems associated with conducting a court-martial
only during periods of scheduled inactive-duty training, and ensures that
the exercise of court-martial jurisdiction is consistent with the policies
set forth in Article 2(d). The last sentence of subsection (d) reflects legislative
intent "not to disturb the jurisprudence of _United States ex
rel. Hirshberg v. Cooke,_ 336 U.S. 210 (1949)" (H.R. Rep.
No. 718, 99th Cong., 2d Sess. at 227 (1986)).
This subsection is based on paragraphs 5, 32, 33, 35, and 128 _
a_ of MCM, 1969 (Rev.). See Articles 15, 22-24.
The second sentence is based on United States v. Hawthorne,
7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956); _United States v. Rembert
_, 47 C.M.R. 755 (A.C.M.R. 1973), pet. denied, 23
U.S.C.M.A. 598 (1974). See also United States v. Hardy,
4 M.J. 20 (C.M.A. 1977). A superior authority who withholds from a subordinate
the authority to dispose of offenses (see R.C.M. 306) or
charges may later modify or rescind such withholding. Even if such modification
or rescission is denominated a "delegation," it would be a rescission
of the earlier withholding.
This subsection is based on Article 30(b) and the first sentence
of paragraph 30 i of MCM, 1969 (Rev.). The discussion
is also based on paragraphs 30 _ f_, 32 b,
c, f(1), 33 a, d, m, and 35 _ a
_ of MCM, 1969 (Rev.).
This subsection is based on paragraphs 32 and 33 of MCM, 1969 (Rev.).
Most matters in those paragraphs, including the mechanics of forwarding
charges, have been placed in the discussion as the practices of the services
vary because of differing command structures. Specific requirements and additional
details may be provided by service regulations.
This subsection is based on the first sentence in the second paragraph
of paragraph 33 f of MCM, 1969 (Rev.). _See also
_ R.C.M. 407(b) and Article 43(e).
This rule and the discussion are based on paragraph 33 of MCM, 1969
(Rev.). See Article 24. Paragraph 33 was written in terms
of guidance. The structure of the paragraph and the descriptions of the alternatives
available to the commander exercising summary court-martial jurisdiction
indicated the powers of such commanders. R.C.M. 403 expresses these powers
in clearer terms. Several matters covered in paragraph 33 are now covered
in other rules. See R.C.M. 303 (preliminary inquiry); 308
(notification of accused); 401 (forwarding charges; discussion of suspected
insanity, joint or common trials); 601 (instructions in referral order; common
trials); 603 (amending charges). See also R.C.M. 306.
This rule is new. Paragraph 33 of MCM,
1969 (Rev.) treated both special and summary court-martial convening authorities. _
See_ paragraph 33 _ j_(1) of MCM, 1969 (Rev.); Analysis,
R.C.M. 403.
2015 Amendment: This is a new rule created to implement Section 1702(a) of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to preliminary hearings occurring on or after 26 December 2014.
2015 Amendment: This rule was created to implement Section 1702(a) of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. This new rule took effect on 26 December 2014 pursuant to Section 531(g)(1) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014, and applies to preliminary hearings occurring on or after 26 December 2014.
This subsection is based on Article 34(a) as amended, Military
Justice Act of 1983, Pub. L. No. 98-209, § 4, 97 Stat. 1393
(1983); and on paragraph 35 b of MCM, 1969 (Rev.).
This subsection is based on Article 34(a). It is consistent with
paragraph 35 c of MCM, 1969 (Rev.) (except insofar as Article
34 is modified). Matters which paragraph 35 c said "should"
be included are not required, but are listed in the discussion. The rule
states the minimum necessary to comply with Article 34(a). _Cf. United
States v. Greenwalt_, 6 U.S.C.M.A. 569, 20 C.M.R. 285 (1955).
The
first paragraph in the discussion is based on paragraph 35 c of
MCM, 1969 (Rev.) and United States v. Hardin, 7 M.J. 399
(C.M.A. 1979); _ United States v. Greenwalt, supra; United States
States v. Pahl_, 50 C.M.R. 885 (C.G.C.M.R. 1975).
The
second paragraph of the discussion is based on S.Rep. No. 53, 98th Cong.,
1st Sess. 17 (1983), and on the second sentence in paragraph 35 _
c_ of MCM, 1969 (Rev.).
The last paragraph is based on _
United States v. Greenwalt, supra. See also United States v. Rivera_,
20 U.S.C.M.A. 6, 42 C.M.R. 198 (1970); United States v. Henry,
50 C.M.R. 685 (A.F.C.M.R.), pet. denied, 23 U.S.C.M.A.
666, 50 C.M.R. 903 (1975); United States v. Barton, 41
C.M.R. 464 (A.C.M.R. 1969).
1991 Amendment: The
Discussion to R.C.M. 406(b) was amended to state explicitly the applicable
standard of proof. See United States v. Engle, 1 M.J. 387,
389 n.4 (C.M.A. 1976). The sentence concerning pretrial advice defects is
based upon United States v. Murray, 25 M.J. 445 (C.M.A.
1988), in which the court reviewed the legislative history to the 1983 amendment
to Article 34, U.C.M.J., and held that lack of a pretrial advice in violation
of the article is neither jurisdictional nor per se prejudicial.
_ 2004 Amendment:_ The Discussion to R.C.M. 406(b) was amended
to add as additional, non-binding guidance that the SJA should include the
recommendation of the Article 32 investigating officer.
This subsection is based on Article 34(b), as amended, Military
Justice Act of 1983, Pub. L. No. 98-209, § 4(b), 97 Stat.
1393 (1983). Paragraph 35 c of MCM, 1969 (Rev.) also required
that the staff judge advocate's recommendation be forwarded with the charges
if referred to trial. This subsection makes clear that the entire advice
is to be forwarded. This ensures that the advice can be subjected to judicial
review when necessary. See R.C.M. 906(b)(3). _See
also United States v. Collins_, 6 M.J. 256 (C.M.A. 1979); _
United States v. Engle, supra._
This subsection is based on Article 34(a) and paragraph 35 _
a_ of MCM, 1969 (Rev.). See Article 22.
This subsection is based on the second and third sentences of the
second paragraph of paragraph 33 f of MCM, 1969 (Rev.)
and Article 43(e). It has been broadened to expressly recognize the authority
of service Secretaries to promulgate regulations governing disposition of
sensitive cases. Note that the rule applies regardless of whether hostilities
exist, although as the discussion notes the Article 43(e) procedure for
suspending the statute of limitations could only be used in time of war.
This subsection is based on Article 16. Except for the change in
the requirement as to the form of the request for trial by military judge
alone, it is consistent with paragraph 4 a of MCM, 1969
(Rev.).
This subsection is based on Article 27(a). Except for the change
concerning who details counsel (see R.C.M. 503(c)), it is
consistent with paragraph 6 a of MCM, 1969 (Rev.). This
subsection includes reference to detailing associate defense counsel. This
is based on Article 27(a), as amended Pub. L. No. 98 -209, § 3(c),
(f), 97 Stat. 1393 (1983).
This subsection is based on paragraph 7 of MCM, 1969 (Rev.).
Subsection (1) is based on Article 25(a), (b) and (c) and on the
first paragraph of paragraph 4 b and paragraph 4 _
d_ of MCM, 1969 (Rev.). Factors which disqualify a person from serving
as a member are listed in R.C.M. 912(f)(1).
The discussion is
based on the second paragraph of paragraph 4 b of MCM, 1969
(Rev.).
The references to use of members of the National Oceanic
and Atmospheric Administration and of the Public Health Service carry forward
the similar provision at paragraph 4 _ b_ of MCM, 1969 (Rev.).
Similar provisions have been included in naval practice since at least 1937. _
See, e.g., Naval Courts and Boards_ § 347 (1937, 1945
reprint). The similar provision in MCM, 1951 was upheld in _United
States v. Braud_, 11 U.S.C.M.A. 192, 29 C.M.R. 8 (1960) (Public
Health Service commissioned officer served as member of Coast Guard court-martial), _
decision below_, 28 C.M.R. 692 (C.G.B.R. 1959). Braud upheld
the provision even though Article 25 is arguably ambiguous and the P.H.S.
officer who served as a member had not been "militarized" and
was not himself subject to the code. Cf. 42 U.S.C. § 217
members become subject to personal jurisdiction of Code); 33 U.S.C. § 855
(NOAA may be transferred by President to military service in national emergency;
members become subject to personal jurisdiction of Code); Art. 2(a)(8) (jurisdiction
over members of Public Health Service and of Environmental Science Services
Administration). The Environmental Science Services Administration, which
succeeded the Coast and Geodetic Survey mentioned in some earlier Manuals,
is now defunct. Its functions were transferred to the National Oceanic and
Atmospheric Administration. Reorg. Plan No. 4 of 1970, 3 C.F.R. 1075 (1966-1970
Comp.), reprinted in 84 Stat. 2090. NOAA has only a commissioned
officer corps. _ Id._ § 2(f); 33 U.S.C.A. § 851
(Supp. 1981). P.H.S. has both commissioned and warrant officers. 42 § 204
(Supp. 1981).
Subsection (2) and the discussion are based on
paragraph 41 a and b and the last paragraph
of paragraph 53_d_ of MCM, 1969 (Rev.). The admonition of
MCM, 1969 (Rev.) that misconduct by members may constitute an offense and
that members should be attentive and dignified has been deleted as unnecessary.
Subsection (1) is based on paragraph 40 a of MCM,
1969 (Rev.). Subsections (2)(A) and (B) are based on paragraphs 40 _
b_(1)(c) and (d) of MCM, 1969 (Rev.). Paragraphs 40 b(1)
with the authority of the military judge under R.C.M. 801(a)(1). Paragraph
40 b(1)(b) is unnecessary. Subsection (2)(c) is based on
paragraph 40 b(2) of MCM, 1969 (Rev.). The general description
of the duties of a president of a special court-martial without a military
judge in paragraph 40_b_(2) is deleted here. Such a summarized
description is an inadequate substitute for familiarity with the rules
themselves.
This subsection and the discussion are based on Article 26(b) and
disqualification are described in R.C.M. 902.
_1999 Amendment:
_ R.C.M. 502(c) was amended to delete the requirement that military
judges be "on active duty" to enable Reserve Component judges
to conduct trials during periods of inactive duty for training (IDT) and
inactive duty training travel (IATT). The active duty requirement does not
appear in Article 26, UCMJ which prescribes the qualifications for military
judges. It appears to be a vestigial requirement from paragraph 4 _
e_ of the 1951 and 1969 MCM. Neither the current MCM nor its predecessors
provide an explanation for this additional requirement. It was deleted to
enhance efficiency in the military justice system.
Subsection (1) is based on Article 27(b) and paragraph 6 of MCM,
1969 (Rev.). The possibility of detailing associate counsel has been added
based on the amendment of Article 27(a) and 42(a). See Military
Justice Act of 1983, Pub. L. No. 98-209, § 3(c), (f), 97
Stat. 1393 (1983). As the discussion indicates, "associate counsel"
ordinarily refers to detailed counsel when the accused has military or
civilian counsel. See Article 38(b)(6). An associate defense
counsel must be qualified to act as defense counsel. An assistant defense
counsel need not be. One other substantive change from MCM, 1969 (Rev.).
has been made. Detailed defense counsel in special courts-martial must be
certified by the Judge Advocate General concerned although this is not required
by Article 27(c). Article 27(c) permits representation of an accused by
a counsel not qualified and certified under Article 27(b) if the accused
does not request qualified counsel, having been given the opportunity to
do so, or when such counsel cannot be obtained on account of physical conditions
or military exigencies. In the latter event, no bad-conduct discharge may
be adjudged. Article 19. Currently, certified counsel is routinely provided
in all special courts-martial, so the modification of the rule will not change
existing practice. Moreover, the enforcement of waiver provisions in these
rules and the Military Rules of Evidence necessitate, both for fairness and
the orderly administration of justice, that the accused be represented by
qualified counsel. See also United States v. Rivas, 3 M.J.
282 (C.M.A. 1977). Because of this rule, the rule of equivalency in Article
27(c) and (3) is not necessary.
Subsection (2) is based on the
fifth sentence of the first paragraph of paragraph 6 c
of MCM, 1969 (Rev.).
Subsection (3) is based on the first sentence
of the second paragraph of paragraph 48 a of MCM, 1969
(Rev.) and on Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980); _
United States v. Kraskouskas_, 9 U.S.C.M.A. 607, 26 C.M.R. 387 (1958).
The discussion is taken from Soriano v. Hosken, supra.
Subsection
6 a of MCM, 1969 (Rev.). _See also United States
the list of disqualifications. See ABA Standards, The Prosecution Function, §§ 3-1(c); 3-3.9(c)(1979).
Subsection
MCM, 1969 (Rev.) and on Article 38(d). The forum-based distinction as to
the powers of an assistant trial counsel has been deleted. The trial counsel
is responsible for the prosecution of the case. R.C.M. 805(c) requires the
presence of a qualified trial counsel at general courts-martial. The discussion
is based on paragraphs 44 e, f, g, and h of
MCM, 1969 (Rev.). Some of the specific duties are now covered in other rules, _
e.g._, R.C.M. 701; 812, 813; 914; 919. Some examples and explanations
have been deleted as unnecessary.
The first sentence of subsections
c of MCM, 1969 (Rev.). The second sentence of subsection
in the court-martial represent the accused in administrative or civil actions
arising out of the same offenses. The discussion is based on paragraphs 46
d, 47, and 48 c, d, e, f, g, h, j, and _
k_ of MCM, 1969 (Rev.). The matters covered in paragraph 48 _
k_(2) and (3) of MCM, 1969 (Rev.) are modified in the discussion
based on the amendment of Articles 38(c) and 61. See Military
Justice Act of 1983, Pub. L. No. 98-209, §§ 3(e)(3),
5(b)(1), 97 Stat. 1393 (1983). See R.C.M. 1105; 1110.
As to associate counsel, see the Analysis subsection (d)(1)
of this rule. See also United States v. Breese, 11 M.J.
17, 22 n.13 (C.M.A. 1981); _United States v. Rivas, supra; United
States v. Palenius_, 2 M.J. 86 (C.M.A. 1977); _United States
This subsection is based on paragraphs 7, 49, 50, and 51 of MCM,
1969 (Rev.). The list of disqualifications, except for the accuser, is new
and is intended to prevent circumstances which may detract from the integrity
of the court-martial.
This subsection is based on paragraphs 41 c, 44
b, 46 b of MCM, 1969 (Rev.).
Subsection (1) is based on Article 25. Because of the amendment
of Articles 26 and 27, the convening authority is no longer required to
detail personally the military judge and counsel. Military Justice Act of
1983, Pub.L. No. 98-209, § 3(c), 97 Stat. 1393 (1983).
The last sentence of paragraph 4 b of MCM, 1969 (Rev.)
is deleted as unnecessary. The second paragraph in the discussion serves
the same purpose as the third paragraph of paragraph 4 b of
MCM, 1969 (Rev.): to alert the convening authority to avoid appointing
people subject to removal for cause. Unlike that paragraph, however, no suggestion
is now made that the convening authority commits error by appointing such
persons, since the disqualifications are waivable. See Analysis,
R.C.M. 912(f)(4).
Subsection (2) is based on Article 25(c) and
the third paragraph of paragraph 4 c of MCM, 1969 (Rev.).
The discussion is based on paragraph 36 c(2) of MCM, 1969 (Rev.).
1986 Amendment: Subsection (2) was amended
to reflect an amendment to Article 25(c)(1), UCMJ, in the "Military
Justice Amendments of 1986," tit. VIII, § 803, National
Defense Authorization Act for fiscal year 1987, Pub. L. No. 99-661,
100 Stat. 3905, (1986) which authorizes enlisted accused to request orally
on the record that at least one-third of the members of courts-martial be
enlisted.
Subsection (3) is based on paragraphs 4 f and
g of MCM, 1969 (Rev.). Subsection (3) combines treatment
of members from a different command and those from a different armed force.
The power of a commander to detail members not under the convening authority's
command is the same whether the members are in the same or a different armed
force. Therefore each situation can be covered in one rule. The discussion
repeats the preference for members, or at least a majority thereof, to be
of the same service as the accused which was found in paragraph 4 _
g_(1) of MCM, 1969 (Rev.). Permission for the Judge Advocate General
to detail members of another armed force is no longer required in the Manual.
Detailing a military judge from a different command or armed force is now
covered in subsection (d).
Subsections (1) and (2) are based on Article 26(a), as amended,
Military Justice Act of 1983, Pub. L. No. 98-209, § 3(c)(1),
97 Stat. 1393 (1983). The convening authority is no longer required to detail
personally the military judge. Id. Subsection (1)
requires that responsibility for detailing military judges will be in judicial
channels. _See Hearings on S.2521 Before the Subcomm. on Manpower
and Personnel of the Senate Comm. on Armed Services_, 97th Cong.,
2nd Sess. 52 (1982). More specific requirements will be provided in service
regulations. Subsection (2) is intended to make detailing the military judge
administratively efficient. See S. Rep. No. 53, 98th Cong.,
1st Sess. 3-5, 12 (1983), H.R. Rep. No. 549, 98th Cong., 1st Sess.
13-14 (1983). As long as a qualified military judge presides over
the court-martial, any irregularity in detailing a military judge is not
jurisdictional and would result in reversal only if specific prejudice were
shown. _ See_ S. Rep. No. 53, 98th Cong., 1st Sess. 12 (1983).
Subsection
2005 Amendment: Subsection (b)(3) was amended to clarify that a military judge from any service may be detailed to a court-martial convened by a combatant or joint commander.
Subsections (1) and (2) are based on Article 27(a), as amended,
Military Justice Act of 1983, Pub. L. No. 98-209, § 3(c)(2),
97 Stat. 1393 (1983). The convening authority is no longer required to detail
personally the counsel. Id. Efficient allocation of authority
for detailing counsel will depend on the organizational structure and operational
requirements of each service. Therefore, specific requirements will be provided
in service regulations. Subsection (2) is intended to make detailing counsel
administratively efficient. See S. Rep. No. 53, 98th Cong.,
1st Sess. 3-5, 12 (1983); H.R. Rep. No. 549, 98th Cong., 1st Sess.
13-14 (1983). Counsel are not a jurisdictional component of courts-martial. _
Wright v. United States_, 2 M.J. 9 (C.M.A. 1976). Any irregularity
in detailing counsel would result in reversal only if specific prejudice
were shown. See S. Rep. No. 53, 98th Cong., 1st Sess.
12 (1983).
Subsection (3) is based on Article 27. _See
also_ Article 6(a).
2005 Amendment: Subsection (c)(3) was amended to clarify that counsel from any service may be detailed to a court-martial convened by a combatant or joint commander.
This subsection substantially repeats the first sentence of paragraph
36 b of MCM, 1969 (Rev.).
Subsection (1) is based on Article 22 and paragraph 5 _ a
_(1) of MCM, 1969 (Rev.). The power of superiors to limit the authority
of subordinate convening authorities is based on paragraph 5 b(4)
of MCM, 1969 (Rev.). Although that paragraph applied only to special and
summary courts-martial, the same principle applies to general courts-martial. _
See_ Article 22(b). _See generally United States v. Hardy
_, 4 M.J. 20 (C.M.A. 1977); United States v. Hawthorne,
7 U.S.C.M.A. 293, 22 C.M.R. 83 (1956); _United States v., Rembert
_, 47 C.M.R. 755 (A.C.M.R. 1973), pet. denied,
23 U.S.C.M.A. 598 (1974). The discussion is based on the second and third
sentences of paragraph 5 a(5) of MCM, 1969 (Rev.).
Subsection
and (4) of MCM, 1969 (Rev.).
2005 Amendment: Subsection (b)(2)(B) was amended to clarify those authorized to determine when a unit is "separate or detached."
As to subsection (3), see Analysis, R.C.M. 1302(a).
Subsection (4) is based
on the first sentence of paragraph 5 a(5) of MCM, 1969
(Rev.). See also United States v. Greenwalt, 6 U.S.C.M.A.
569, 20 C.M.R. 285 (1955); United States v. Bunting, 4 U.S.C.M.A.
84, 15 C.M.R. 84 (1954).
This subsection is based on Articles 22(b) and 23(b) and on paragraph
5 a(3) of MCM, 1969 (Rev.). See also Article
1(5) and (9); United States v. Haygood, 12 U.S.C.M.A. 481,
31 C.M.R. 67 (1961); United States v. LaGrange, 1 U.S.C.M.A.
342,3 C.M.R. 76 (1952); United States v. Kostes, 38 C.M.R.
512 (A.B.R. 1967).
This subsection is based on paragraph 36 b of MCM,
1969 (Rev.) with two substantive modifications. First, in conformity with
the amendment of Articles 26(a) and 27(a), see Military
Justice Act of 1983, Pub. L. No. 98-209, § 3(c) 97 Stat.
1393 (1983), the military judge and counsel are no longer included in the
convening order. See R.C.M. 503(b) and (c) and Analysis.
Second, several matters, such as the unit of any enlisted members, which
were required by paragraph 36 b are not included here.
These may be required by service regulations. Summary courts-martial are
treated separately from general and special courts-martial because of their
different composition.
This subsection is new. It derives from the convening authority's
power to fix the place of trial (see also R.C.M. 906(b)(11))
and from the convening authority's control of the resources for the trial.
It does not change current practice.
This subsection is based on the first sentence of paragraph 37 _
a_ of MCM, 1969 (Rev.) except that it has been modified to conform
to the amendment of Articles 26(a) and 27(a). See Military
Justice Act of 1983, Pub. L. No. 98-209, § 3(c), 97 Stat.
1393 (1983). The discussion is based on the third and fourth sentences of
paragraph 37 c of MCM, 1969 (Rev.).
This subsection is based on the first two sentences of paragraph
37 c(1) and on paragraph 37 c(2) of MCM,
1969 (Rev.). See also United States v. Ware, 5 M.J. 24 (C.M.A.
1978). It has been modified to reflect that military judges and counsel no
longer must be detailed by the convening authority. The second paragraph
in the discussion is based on United States v. Herrington,
8 M.J. 194 (C.M.A. 1980). References in paragraph 37 b to
excusal as a result of challenges are deleted here as challenges are covered
in R.C.M. 902 and 912.
This subsection is based on Articles 25(e) and 29, and paragraphs
37 b and c, and 39 e of
MCM, 1969 (Rev.). The limitation on the authority of the convening authority's
delegate to excuse no more than one-third of the members is based on S.
Rep. No. 53, 98th Cong., 1st Sess. 13 (1983).
Subsection (1) is based on that part of the second sentence of
paragraph 37 a of MCM, 1969 (Rev.) which covered trial counsel.
Subsection
details counsel. Subsection (2)(A) is consistent with that part of the second
sentence of paragraph 37 a of MCM, 1969 (Rev.) which dealt
with defense counsel. Subsection (2)(B) is based on Article 38(b)(5); _
United States v. Catt_, 1 M.J. 41 (C.M.A. 1975); _United States
United States v. Andrews_, 21 U.S.C.M.A. 165, 44 C.M.R. 219 (1972); _
United States v. Massey_, 14 U.S.C.M.A. 486, 34 C.M.R. 266 (1964).
This subsection is based on Articles 26(a) and 29(d) and on paragraph
39 e of MCM, 1969 (Rev.). _See also United States
This subject is based on Article 29 and on _United States
United States v. Boysen_, 11 U.S.C.M.A. 331, 29 C.M.R. 147 (1960); _
Unites States v. Grow_, 3 U.S.C.M.A. 77, 11 C.M.R. 77 (1953). _
See_ S. Rep. No. 53, 98th Cong., 1st Sess. 13 (1983). As to defense
counsel, _see also United States v. Catt, United States v. Timberlake,
United States v. Andrews_ , and _United States v. Massey
, all supra_.
This subsection is taken from the first two sentences of paragraph
48 a of MCM, 1969 (Rev.), which was based on Article 38(b)
as amended. Act of November 20, 1981, Pub. L. No. 97-81; 95 Stat. 1085.
Note that the amendment of Article 38(b) effectively overruled _United
States v. Jordan_, 22 U.S.C.M.A. 164, 46 C.M.R. 164 (1973), which
held that an accused who has civilian counsel is not entitled to individual
military counsel. The amendment of Article 38(b) provides that the accused
may be represented by civilian counsel "and" by detailed or
requested military counsel instead of civilian counsel "or"
requested military counsel as it formerly did. See also H.R.
Rep. No. 306, 97th Cong., 1st Sess. 4-7 (1981).
Nothing
in this rule is intended to limit the authority of the military judge to
ensure that the accused exercises the rights to counsel in a timely fashion
and that the progress of the trial is not unduly impeded. _See Morris
United States v. Montoya_, 13 M.J. 268 (C.M.A. 1982); _United
States v. Kinard_, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); _
United States v. Brown_, 10 M.J. 635 (A.C.M.R. 1980); _United
States v. Alicea-Baez_, 7 M.J. 989 (A.C.M.R. 1979); _United
States v. Livingston_, 7 M.J. 638 (A.C.M.R. 1979), aff'd 8
M.J. 828 (C.M.A. 1980). See also United States v. Johnson,
12 M.J 670 (A.C.M.R. 1981); United States v. Kilby, 3 M.J.
938 (N.C.M.R.), pet. denied, 4 M.J. 139 (1977).
Subsection (1) is based on paragraphs 48 b(1) and
No. 306, _ supra_ at 5-7; _United States v. Kelker
_, 4 M.J. 323 (C.M.A. 1978); United States v. Eason,
21 U.S.C.M.A. 335, 45 C.M.R. 109 (1972); _United States v. Murray
_, 20 U.S.C.M.A. 61, 42 C.M.R 253 (1970). The second sentence of
the last paragraph of this subsection has been modified based on the amendment
of Article 38(b)(7), Military Justice Act of 1983, Pub. L. No. 98-209,
§ 3(e)(2), 97 Stat. 1393 (1983).
Subsection (2) is
taken from paragraph 48 b(3) of MCM, 1969 (Rev.). _
See also_ Article 38(b)(7). It ensures substantial uniformity in
procedure among the services for handling requests for individual military
counsel.
Subsection (3) is based on the fourth through eighth
sentences in the second paragraph of paragraph 46 d of
MCM, 1969 (Rev.) and on Article 38(b)(6). See also H.R.
Rep. No. 306, supra at 4-7. Authority to excuse detailed
counsel has been modified based on the amendment of Article 38(b)(6). _
See_ Military Justice Act of 1983, Pub. L. No. 98-209, § 3(e)(1),
97 Stat. 1393 (1983).
This subsection is based on United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); United States v. Palenius, 2 M.J.
86 (C.M.A. 1977); United States v. Eason, supra; _
United States v. Andrews_, 21 U.S.C.M.A. 165, 44 C.M.R. 219 (1972). _
See_ Analysis, R.C.M. 505(c)(2).
This subsection is based on the third sentence of the second paragraph
of paragraph 48 a of MCM, 1969 (Rev.) and on _Faretta
see id._ at 834 n.46.
This subsection is based on the last sentence of the second paragraph
of paragraph 48 a of MCM, 1969 (Rev.).
This definition is new. MCM, 1969 (Rev.) did not define "referral."
This section is also new, although MCM, 1969 (Rev) clearly implied
that any convening authority could refer charges. _See also United
States v. Hardy_, 4 M.J. 29 (C.M.A. 1977). Paragraphs 5 _
b_(4) and 5 c of MCM, 1969 (Rev.) contained similar
provisions.
This section is added to the Manual to express the statutory disqualification
of an accuser to convene a court-martial in parallel terms in relation to
referral. See Articles 22(b), 23(b). Cf.
Article 24(b). The discussion follows paragraph 33 _ i_ of
MCM, 1969 (Rev.).
Subsection (1) is new. Neither the code nor MCM, 1969 (Rev) have
previously provided a standard for referral except in general courts-martial. _
See_ Article 34(a). Subsection (1) promotes efficiency by helping
to prevent groundless charges from being referred for trial. This is consistent
with Fed. R. Crim. P. 5.1(a). _Accord ABA Standards Prosecution Function
_ section 3-3.9(a) (1979). Consistent with the amendment of
Article 34, subsection (1) does not require the convening authority to evaluate
the legal sufficiency of the case personally. In general courts-martial the
legal sufficiency determination must be made by the staff judge advocate. _
See_ Article 34(a) and subsection (3)(2) of this rule. Subsection
and summary courts-martial. Because of the judicial limitations on the sentencing
power of special and summary courts-martial, any judge advocate may make
the determination or the convening authority may do so personally. (A special
or summary court-martial convening authority does not always have access
to a judge advocate before referring charges; moreover, this subsection does
not require reference to a judge advocate, even if one is available, if the
convening authority elects to make the determination personally.) A person
who serves as a trial counsel is not disqualified from rendering this advice. _
Cf. ABA Standards Prosecution Function_ Section 3-3.9(a) (1979).
Note that there is no requirement under this subsection that the judge advocate's
advice be written or that the convening authority memorialize the basis
of the referral in any way.
The "reasonable grounds"
standard is based on Article 34's prerequisite to referral of charges to
a general court-martial that the charges be warranted by the evidence in
the report of the Article 32 investigation. Further, the legislative history
of Article 32 strongly suggests that this is the intended standard of the
investigation. _Hearings on H.R. 2498 Before a Subcomm, of the House
Comm. on Armed Services_, 81st Cong., 1st Sess. 997 -98 (1949).
Nothing suggests that the standard governing referral to inferior courts-martial
should be different from that applicable to general courts-martial. It appears
that the reasonable grounds standard has been in operation even without
an explicit requirement. See, e.g., United States v. Eagle,
1 M.J. 387, 389 n.4 (C.M.A. 1976); United States v. Kauffman,
33 C.M.R. 748, 795 (A.F.B.R.), rev'd on other grounds,
14 U.S.C.M.A. 283, 34 C.M.R. 63 (1963). Cf. Gerstein v. Pugh,
420 U.S. 103 (1975).
Subsection (2) restates the prerequisites
for referral to a general court-martial of Articles 32 and 34. It is consistent
with paragraphs 30 c and d, 34 _
a_, and 35 of MCM, 1969 (Rev.) except insofar as the amendment of
Article 34 (see Military Justice Act of 1983, Pub. L. No.
98-209, § 4, 97 Stat. 1393 (1983)) requires otherwise.
The function of this provision is the same as paragraph 30 of MCM, 1969
(Rev.) to serve as a reminder of procedural limitations on referral. The
waiver provision is based on Article 32(d); S. Rep. No. 53, 98th Cong., 1st
Sess. 17 (1983); United States v. Schaffer, 12 M.J. 425
(C.M.A. 1982); United States v. Ragan, 14 U.S.C.M.A. 119,
33 C.M.R. 331 (1963).
Subsection (1) is consistent with paragraph 33 j(1)
of MCM, 1969 (Rev.). The personal responsibility of the convening authority
to decide whether to refer and how to refer is emphasized, but the discussion
makes clear that the administrative aspects of recording that decision may
be delegated.
The discussion's instructions for subsequent referrals
are based on paragraph 33 j(1) of MCM, 1969 (Rev.).
The
special case of referrals to summary courts-martial by the only officer present
in command follows paragraph 33 j(1) of MCM, 1969 (Rev.)
and Article 24(b).
The discussion of limiting instructions follows
paragraphs 33 j(1) and k of MCM, 1969
(Rev.). The advice that convening authorities be guided by the criteria
for capital punishment found at R.C.M. 1004 is new. _See Gregg v.
Georgia_, 428 U.S. 153, 225 (1976) (White, J., concurring in the
judgment).
The last paragraph of the discussion on transmitting
the referred charges and allied papers to the trial counsel is based on
paragraph 33 j(2) of MCM, 1969 (Rev.).
Subsection
26 b and c of MCM, 1969 (Rev.), which
cautioned against joining major and minor offenses. This rule is inconsistent
with Fed. R. Crim. P. 8(a), which requires (in general) separate trials
for each offense. Such a requirement is too unwieldy to be effective, particularly
in combat or deployment. Joinder is entirely within the discretion of the
convening authority. The last two sentences of the rule dealing with additional
charges are based on paragraph 65 b of MCM, 1969 (Rev.).
The discussion encourages economy, following paragraph 33 h of
MCM, 1969 (Rev.). The last sentence in subsection (2) is new and clarifies
that the accused may consent to the referral of additional charges after
arraignment. Since the prohibition of such referral is for the accused's
benefit, the accused may forego it when it would be the accused's advantage. _
See United States v. Lee_, 14 M.J. 983 (N.M.C.M.R. 1983).
The
first two sentences of subsection (3) restate Fed. R. Crim. P. 8(b) in military
nomenclature. They are consistent with the approach taken by paragraph 26 _
d_ of MCM, 1969 (Rev.). The last sentence is based on paragraph
33 l of MCM, 1969 (Rev.). There is no counterpart in federal
civilian practice.
2005 Amendment: The Discussion section was amended to reflect the rule changes that require the convening authority to affirmatively refer a capital punishment eligible offense for trial as a capital case.
This rule is based on Article 35 and paragraph 44 h
of MCM, 1969 (Rev.). Fed. R. Crim. P. 9 is consistent in purpose with this
rule, but not in structure. The warrant system of Fed. R. Crim. P. 9(a),
(b)(1), and (c) (2) is unnecessary in military practice. The remand provision
of Fed. R. Crim. P. 9(d) is inconsistent with the structure of military
procedure but consistent with the convening authority's discretion to refer
charges to a minor forum. See R.C.M. 306. The provision
of Fed. R. Crim. P. 9(c) for service by mail or delivery to a residence
is inconsistent with Article 35.
This definition and the discussion consolidate the tests and examples
found at paragraphs 33 d, 44 f(1), and
69 b(1) of MCM, 1969 (Rev.). They are consistent with Fed.
R. Crim. P. 7(e).
This provision is based on and consolidates the authority of various
persons to make minor changes as stated at paragraphs 33 d and
44 f(1) of MCM, 1969 (Rev.). It is inappropriate for an
Article 32 investigating officer to make changes, but an investigating officer
may recommend changes. See also Article 34(b) which provides
authority for the staff judge advocate or legal officer to amend charges
or specifications for the reasons stated therein.
This provision is based on Fed. R. Crim. P. 7(e), which is generally
consistent with military practice.
This subsection is based on paragraphs 33 d and
33 e(2) of MCM, 1969 (Rev.). See also Article
34(b) which provides authority for the staff judge advocate or legal officer
to amend charges or specifications for the reasons stated therein.
This rule is based on paragraphs 5 a(6) and 56
a of MCM, 1969 (Rev.). The rule parallels Fed. R. Crim.
P. 48(a), but leave of the court is not required for the convening authority
to withdraw (or dismiss) charges and specifications. This would be inconsistent
with the responsibilities of the convening authority under the Code. _
See_ Articles 34 and 60. The potential abuses which the leave-of-court
requirement in the federal rule are designed to prevent are adequately prevented
by the restraint on a later referral of withdrawn charges in the subsection
(b).
The first paragraph in the discussion is new. It recognizes
the distinction between withdrawal of charges, which extinguishes the jurisdiction
of a court-martial over them, and dismissal of charges, which extinguishes
the charges themselves. The discussion cautions that withdrawn charges, like
any other unreferred charges, should be disposed of promptly. Dismissal of
charges disposes of those charges; it does not necessarily bar subsequent
disposition of the underlying offenses (see Analysis, R.C.M.
306(a)), although a later preferral and referral would raise the same issues
as are discussed under subsection (b).
The second paragraph in
the discussion is based on the last sentence of paragraph 56 a
of MCM, 1969 (Rev.).
The third paragraph in the discussion is
based on the second and fourth sentences in paragraph 56 a of
MCM, 1969 (Rev.).
The first sentence of the fourth paragraph is
based on the third sentence of paragraph 56 a of MCM, 1969
(Rev.) and United States v. Charette, 15 M.J. 197 (C.M.A.
1983); United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983).
The remainder of this paragraph is based on the second sentence of paragraph
56 a and paragraph 56 d of MCM, 1969 (Rev.).
This rule is based on paragraphs 33 j(1) and 56
of MCM, 1969 (Rev.) and numerous decisions. _See, e.g., United States
Charette, United States v. Blaylock_, and _United States
Hardy_, all _ supra; United States v. Jackson_,
1 M.J. 242 (C.M.A. 1976); _ United States v. Walsh_, 22 U.S.C.M.A.
509, 47 C.M.R. 926 (1973); Petty v. Convening Authority,
20 U.S.C.M.A. 438, 43 C.M.R. 278 (1971). The second sentence in the rule
is derived from portions of paragraphs 56 b and _
c_ of MCM, 1969 (Rev.) which were in turn based on _ Wade v.
Hunter_, 336 U.S. 684 (1949); _Legal and Legislative Basis,
Manual for Courts-Martial, United States, 1951_ at 64. _See
_ Article 44. The second sentence of paragraph 56 _ b_ of
MCM, 1969 (Rev.) has been deleted. That sentence suggested that withdrawal
after introduction of evidence on the merits for reasons other than urgent
and unforeseen military necessity would not bar re-referral in some cases.
If further prosecution is contemplated, such other possible grounds for terminating
the trial after introduction of evidence has begun are more appropriately
subject to a judicial determination whether to declare a mistrial under R.C.M.
The first paragraph in the discussion contains a cross-reference
to R.C.M. 915, Mistrial. Paragraph 56 of MCM, 1969 (Rev.) dealt with both
withdrawal and mistrial. This was unnecessary and potentially confusing.
Although the effect of a declaration of a mistrial may be similar to that
of withdrawal, the narrow legal bases for a mistrial (_see United
States v. Simonds_, 15 U.S.C.M.A. 641, 36 C.M.R. 139 (1966)) should
be distinguished from withdrawal, which involves a far wider range of purposes
and considerations. See Analysis, R.C.M. 915.
The
second paragraph in the discussion is based on paragraph 56 b of
MCM, 1969 (Rev.). Unlike paragraph 56 b, the current rules
does not require a record in certain cases. Instead the discussion suggests
that such a record is desirable if the later referral is more onerous to
the accused. See United States v. Blaylock, supra at 192
n.1; _ United States v. Hardy, supra_.
The third
paragraph in the discussion is based on _United States v. Charette,
United States v. Blaylock, United States v. Walsh_, and _
Petty v. Convening Authority_, all _supra; United States
_ Article 37.
The fourth paragraph in the discussion is
based generally on paragraphs 56 b and c of
MCM, 1969 (Rev.), but more specificity is provided as to proper reasons
for withdrawal and its effect at certain stages of the proceedings. The grounds
for proper withdrawal and later referral are based on _United States
all supra; United States v. Lord, 13 U.S.C.M.A.
78, 32 C.M.R. 78 (1962); and current practice. _United States v.
Hardy_ and United States v. Walsh, both _
supra_, indicate that the commencement of court-martial proceedings
is, by itself, not important in analyzing the propriety of withdrawal. Arraignment
is normally the first significant milestone for the same reasons that make
it a cut-off point for other procedures. See, e.g., R.C.M.
601; 603; 804. It should be noted that assembly of the court-martial, which
could precede arraignment, could also have an effect on the propriety of
a withdrawal, since this could raise questions about an improper intent to
interfere with the exercise of codal rights or the impartiality of the court-martial.
The importance of the introduction of evidence is based on Article 44. _
See also_ R.C.M. 907(b)(2)(C) and Analysis.
Introduction. This rule is based on Article 46,
as well as Article 36. The rule is intended to promote full discovery to
the maximum extent possible consistent with legitimate needs for nondisclosure
(see e.g., Mil. R. Evid. 301; Section V) and to eliminate
"gamesmanship" from the discovery process. _See generally
ABA Standards, Discovery and Procedure Before Trial_ (1978). For
reasons stated below, the rule provides for broader discovery than is required
in Federal practice. See Fed. R. Crim. P. 12.1; 12.2; 16. _
See also_ 18 U.S.C. § 3500.
Military discovery
practice has been quite liberal, although the sources of this practice are
somewhat scattered. See Articles 36 and 46; paragraphs 34,
44 h, and 115 c of MCM, 1969 (Rev.). _
See also United States v. Killebrew_, 9 M.J. 154 (C.M.A. 1980); _
United States v. Cumberledge_ 6 M.J. 203, 204 n.4 (C.M.A. 1979).
Providing broad discovery at an early stage reduces pretrial motions practice
and surprise and delay at trial. It leads to better informed judgment about
the merits of the case and encourages early decisions concerning withdrawal
of charges, motions, pleas, and composition of court-martial. In short, experience
has shown that broad discovery contributes substantially to the truth-finding
process and to the efficiency with which it functions. It is essential to
the administration of military justice; because assembling the military judge,
counsel, members, accused, and witnesses is frequently costly and time-consuming,
clarification or resolution of matters before trial is essential.
The
rule clarifies and expands (at least formally) discovery by the defense.
It also provides for the first time some discovery by the prosecution. _
See_ subsection (b) of the rule. Such discovery serves the same
goal of efficiency.
Except for subsection (e), the rule deals
with discovery in terms of disclosure of matters known to or in the possession
of a party. Thus the defense is entitled to disclosure of matters known to
the trial counsel or in the possession of military authorities. Except as
provided in subsection (e), the defense is not entitled under this rule
to disclosure of matters not possessed by military authorities or to have
the trial counsel seek out and produce such matters for it. _But
see_ Mil. R. Evid. 506 concerning defense discovery of government
information generally. Subsection (e) may accord the defense the right to
have the Government assist the defense to secure evidence or information
when not to do so would deny the defense similar access to what the prosecution
would have if it were seeking the evidence or information. _See United
States v. Killebrew, supra; Halfacre v. Chambers_, 5 M.J. 1099 (C.M.A.
1976).
This subsection is based in part on Fed. R. Crim. P. 16(a), but
it provides for additional matters to be provided to the defense. _
See ABA Standards, Discovery and Procedure Before Trial_ § 11-2.1
(1978). Where a request is necessary, it is required to trigger the duty
to disclose as a means of specifying what must be produced. Without the request,
a trial counsel might be uncertain in many cases as to the extent of the
duty to obtain matters not in the trial counsel's immediate possession. A
request should indicate with reasonable specificity what materials are sought.
When obviously discoverable materials are in the trial counsel's possession,
trial counsel should provide them to the defense without a request. "Inspect"
includes the right to copy. See subsection (h) of this rule.
Fed.
R. Crim. P. 16(a)(1)(A) is not included here because the matter is covered
in Mil. R. Evid. 304(d)(1). The discussion under subsection (a)(6) of this
rule lists other discovery and notice provisions in the Military of Evidence.
Subsection
See also_ paragraph 33 i, _ id._ 18
U.S.C. § 3500(a) is contra; the last sentence of Article 32(b)
reflects Congressional intent that the accused receive witness statements
before trial.
Subsection (2) is based on paragraph 115 _
c_ of MCM, 1969 (Rev.) and parallels Fed. R. Crim. P. 16(a)(1)(C)
and (D).
Subsection (3)(A) is based on the last sentence in the
second paragraph of paragraph 44 h of MCM, 1969 (Rev.). _
See also_ Appendix 5 at A5-1 of MCM, 1969 (Rev.); _
United States v. Webster_, 1 M.J. 216 (C.M.A. 1975). Subsection
(3)(B) is based on Fed. R. Crim. P. 12.1(b). Fed. R. Crim. P. 12.2 (notice
based on mental condition) contains no parallel requirement for disclosure
of rebuttal witnesses by the prosecution. The defense will ordinarily have
such information because of the accused's participation in any court-ordered
examination, so the distinction diminishes in practice. In the interest
of full disclosure and fairness, subsection (3)(B) requires the prosecution
to notify the defense of rebuttal witnesses on mental responsibility. _
See also_ R.C.M. 706.
1991 Amendment: Subsection
(a)(3)(B) was amended to provide for prosecution disclosure of rebuttal
witnesses to a defense of innocent ingestion. This conforms to the amendment
to R.C.M. 701(b).
Subsection (4) is based on Fed. R. Crim. P.
16(a)(1)(B). The language is modified to make clear that the rule imposes
no duty on the trial counsel to seek out prior convictions. (There is an
ethical duty to exercise reasonable diligence in doing so, however. _
See ABA Code of Professional Responsibility_, DR 6-101(A)(2);
EC 6-4(1975).) The purpose of the rule is to put the defense on notice
of prior convictions of the accused which may be used against the accused
on the merits. Convictions for use on sentencing are covered under subsection
(a)(5). Because of this distinction, under some circumstances the trial counsel
may not be able to use a conviction on the merits because of lack of timely
notice, but may be able to use it on sentencing.
Subsection (5)
is based on paragraph 75 b(5) of MCM, 1969 (Rev.) _
Cf._ Fed. R. Crim. P. 32(c)(3).
Subsection (6) is based
on ABA Standards, The Prosecution Function § 3-3.11(a)
(1979); ABA Standards, Discovery and Procedure Before Trial § 11-2.1(c)
(1978). _ See also United States v. Agurs_, 427 U.S. 97 (1976); _
Brady v. Maryland_, 373 U.S. 83 (1963); _United States v.
Brickey_, 16 M.J. 258 (C.M.A. 1983); _United States v. Horsey
_, 6 M.J. 112 (C.M.A. 1979); United States v. Lucas,
5 M.J. 167 (C.M.A. 1978); _ABA Code of Professional Responsibility
_, DR 7-103(B) (1975). __
This subsection is based on Fed. R. Crim. P. 12.1, 12.2, and 16(b)(1)(A)
and (B). See generally Williams v. Florida, 399 U.S. 78
(1970). The requirement in Fed. R. Crim. P. 12.1 for a written request by
the prosecution for notice of an alibi defense was deleted because it would
generate unnecessary paperwork. The accused is adequately protected by the
opportunity to request a bill of particulars.
_1986 Amendment.
_ The phrase "a mental disease, defect, or other condition
bearing upon the guilt of the accused" was deleted from this subsection,
with other language substituted, in conjunction with the implementation
of Article 50a, and the phrase "or partial mental responsibility"
was deleted from the discussion to conform to the amendment to R.C.M. 916(k)(2).
_
1991 Amendment:_ Subsection (b)(1) has been revised to expand the
open discovery that is characteristic of military practice. It provides the
trial counsel with reciprocal discovery and equal opportunity to interview
witnesses and inspect evidence as that available to the defense under subsection
(a). See Article 46, U.C.M.J., and R.C.M. 701(e). Enhanced
disclosure requirements for the defense are consistent with a growing number
of state jurisdictions that give the prosecution an independent right to
receive some discovery from the defense. See Mosteller, _
Discovery Against the Defense: Tilting the Adversarial Balance_,
74 Calif. L. Rev. 1567, 1579-1583 (1986). Mandatory disclosure requirements
by the defense will better serve to foster the truth-finding process.
_
1991 Amendment:_ Subsection (b)(2) was revised to add the requirement
that the defense give notice of its intent to present the defense of innocent
ingestion. The innocent ingestion defense, often raised during trials for
wrongful use of a controlled substance, poses similar practical problems
(e.g., substantial delay in proceedings) as those generated
by an alibi defense, and thus merits similar special treatment.
_
2002 Amendment:_ Subsection (b)(4) was amended to take into consideration
the protections afforded by the new psychotherapist-patient privilege under
Mil. R. Evid. 513.
1991 Amendment: Subsection
(b)(5) was amended to clarify that when the defense withdraws notice of
an intent to rely upon the alibi, innocent ingestion, or insanity defenses,
or to introduce expert testimony of the accused's mental condition, neither
evidence of such intention, nor statements made in connection therewith,
are admissible against the servicemember who gave notice. This rule applies
regardless of whether the person against whom the evidence is offered is
an accused or a witness. Fed. R. Crim. P. 12.1 and 12.2,
upon which the subsection is based, were similarly amended
[See H.R. Doc. No. 64, 99th Cong., 1st Sess. 17-18 (1985)].
This subsection is based on repealed subsection (a)(4) and (b)(3)
of Fed. R. Crim. P. 16. Those subsections were inadvertently left in that
rule after the notice of witnesses provisions were deleted by the conference
committee. Act of December 12, 1975, Pub. L. No. 94-149, § 5,
89 Stat. 806. But see Fed. R. Crim. P. 12.1(f). Because notice
of witnesses under R.C.M. 701 is required or otherwise encouraged
(see also R.C.M. 703), such a provision is necessary in these rules.
This subsection is based on Fed. R. Crim. P. 16(c). _See
also ABA Standards, Discovery and Procedure Before Trial_ § 11-4.2
(1978).
This subsection is based on Article 46; paragraphs 42 _ c
_ and 48 h of MCM, 1969 (Rev.); _United States
_, 15 U.S.C.M.A. 256, 35 C.M.R. 228 (1965); _United States
permits witness (e.g., informant) protection programs and prevents improper
interference with preparation of the case. _See United States v. Killebrew
_ and United States v. Cumberledge, both supra. _
See also_ subsection (f) of this rule; Mil. R. Evid. 507.
_
1986 Amendment._ The discussion was added, based on _United
States v. Treakle_, 18 M.J. 646 (A.C.M.R. 1984). _See also
United States v. Tucker_, 17 M.J. 519 (A.F.C.M.R. 1984); _
United States v. Lowery_, 18 M.J. 695 (A.F.C.M.R. 1984); _
United States v. Charles_, 15 M.J. 509 (A.F.C.M.R. 1982); _
United States v. Estes_, 28 C.M.R. 501 (A.B.R. 1959).
This subsection is based on the privileges and protections in other
rules (see, e.g., Mil. R. Evid. 301 and Section V). _
See also Goldberg v. United States_, 425 U.S. 94 (1976); _
United States v. Nobles_, 422 U.S. 225 (1975); _Hickman v.
Taylor_, 329 U.S. 495 (1947). It differs from Fed. R. Crim. P. 16(a)(2)
because of the broader discovery requirements under this rule. Production
under the Jencks Act, 18 U.S.C. § 3500, is covered under R.C.M.
Subsection (1) is based on the last sentence of Fed. R. Crim. P.
16(d)(2). It is a separate subsection to make clear that the military judge
has authority to regulate discovery generally, in accordance with the rule.
Local control of discovery is necessary because courts-martial are conducted
in such a wide variety of locations and conditions. See also R.C.M.
Subsection (g)(2) is based on Fed. R. Crim. P. 16(d)(1). _
Cf._ Mil. R. Evid. 505; 506. _See also ABA Standards, Discovery
and Procedures Before Trial_ § 11-4.4 (1978).
Subsection
(g)(3) is based on Fed. R. Crim. P. 16(d)(2), but it also incorporates the
noncompliance provision of Fed. R. Crim. P.12.1(d) and 12.2(d). _
But see Williams v. Florida, supra_ at 83 n. 14; _Alicea
on United States v. Myers, 550 F.2d 1036 (5th Cir. 1977),_
cert. denied_, 439 U.S. 847 (1978).
_1993 Amendment.
_ The amendment to R.C.M. 701(g)(3)(C), based on the decision of
Taylor v. Illinois, 484 U.S. 400 (1988), recognizes that
the Sixth Amendment compulsory process right does not preclude a discovery
sanction that excludes the testimony of a material defense witness. This
sanction, however, should be reserved to cases where the accused has willfully
and blatantly violated applicable discovery rules, and alternative sanctions
could not have minimized the prejudice to the Government. _See Chappee
The Discussion to R.C.M. 701(g)(3)(C) adopts the test, along with factors
the judge must consider, established by the Taylor decision.
This subsection is based on Fed. R. Crim. P. 16.
This subsection is based on the first sentence in Fed. R. Crim.
P. 15(a). The language concerning preferral of charges is added based on
Article 49(a). The language concerning use at Article 32 investigations
is also added because depositions may be used at such hearings.
"Exceptional" means out of the ordinary. Depositions are not
taken routinely, but only when there is a specific need under the circumstances.
As used in Fed. R. Crim. P. 15(a) "exceptional circumstances"
is generally limited to preserving the testimony of a witness who is likely
to be unavailable for trial. See 8 J. Moore, _Moore's
Federal Practice_ Para. 15.02[1]; 15.03 (1982
rev.ed.); _ United States v. Singleton_, 460 F.2d 1148 (2d
Cir. 1972). A deposition is not a discovery device under the Federal
rule. 8 J. Moore, supra Para. 15.02[1]. _
See also United States v. Rich_, 580 F.2d 929 (9th Cir.), _
cert. denied_, 439 U.S. 935 (1978); _United States v. Adcock
_, 558 F.2d. 397 (8th Cir.), cert. denied, 434 U.S.
921 (1977). The Court of Military Appeals has held that depositions may
serve as a discovery device in certain unusual circumstances. _See
_ Analysis, subsection (c)(3)(A) _ infra_. Consequently,
"exceptional circumstances" may be somewhat broader in courts-martial.
Nevertheless, the primary purpose of this rule is to preserve the testimony
of unavailable witnesses for use at trial. See Article 49; _
Hearings on H.R. 2498 Before a Subcomm. of the Comm. on Armed Services_ 81st
Cong. 1st Sess. 1064-1070 (1949).
The first paragraph in
the discussion is based on Article 49(d) and (f) and on paragraph 117 _
a_ of MCM, 1969 (Rev.). The second and third paragraphs are based
on Article 49(d), (e), and (f); paragraph 117 b(11) of
MCM, 1969 (Rev.); Fed. R. Crim. P. 15(e). The admissibility of depositions
is governed by Mil. R. Evid. 804 and by Article 49(d), (e), and (f) so it
is unnecessary to prescribe further rules governing their use in R.C.M.
19 U.S.C.M.A. 217, 41 C.M.R. 217 (1970). _See also United States
Bennett_ , 12 M.J. 463, 471 (C.M.A. 1982); _United States
Gaines_, 20 U.S.C.M.A. 557, 43 C.M.R. 397 (1971); _United
States v. Bryson_, 3 U.S.C.M.A. 329, 12 C.M.R. 85 (1953). The fourth
paragraph in the discussion is based on paragraphs 75 b(4)
and 75 e of MCM, 1969 (Rev.).
This subsection is based on Article 49(a) and on the second and
third sentences of paragraph 117 b(1) of MCM, 1969 (Rev.).
As noted in subsection (i) the express approval of a competent authority
is not required in order to take a deposition. _See also United States
may be necessary in order to secure the necessary personnel or other resources
for a deposition, when a subpoena will be necessary to compel the presence
of a witness, or when the parties do not agree to the deposition.
Subsection (1) is based on the first sentence in paragraph 117 _
b_(1) of MCM, 1969 (Rev.). The discussion is based on the fourth
sentence of that paragraph. Subsection (2) is based on the fifth and sixth
sentences in paragraph 117 b(1).
Subsection
(3)(A) is based on Article 49(a). The discussion provides guidance on what
may be good cause for denial. The discussion indicates that ordinarily the
purpose of a deposition is to preserve the testimony of a necessary witness
when that witness is likely to be unavailable for trial. See Analysis,
subsection (a) of this rule. The Court of Military Appeals has held that
a deposition may be required in other circumstances described in the last
sentence of the discussion. See United States v. Killebrew,
9 M.J. 154 (C.M.A. 1980); United States v. Cumberledge,
6 M.J. 203, 205, n.3 (C.M.A. 1979) (deposition may be appropriate means
to compel interview with witness when Government improperly impedes defense
access to a witness); United States v. Chuculate, 5 M.J.
143, 145 (C.M.A. 1978) (deposition may be an appropriate means to allow
sworn cross-examination of an essential witness who was unavailable at the
Article 32 hearing); United States v. Chestnut, 2 M.J.
84 (C.M.A. 1976) (deposition may be an appropriate means to cure error where
witness was improperly found unavailable at Article 32 hearing). _
Chuculate_ and Chestnut have construed Article 49
as means of satisfying the discovery purposes of Article 32 when the Article
32 proceeding fails to do so. Killebrew and _Cumberledge
_ have construed Article 49 as a means of permitting full investigation
and preparation by the defense when the Government improperly interferes.
Whether a deposition is an appropriate tool for the latter purpose may bear
further consideration, especially since R.C.M. 701(e) makes clear that such
interference is improper. See also R.C.M. 906(b)(7).
Subsection
(3)(B) is based on the first sentence of paragraph 117 b(1)
and on paragraphs 75 b(4) and e of MCM,
1969 (Rev.). See also United States v. Jacoby, 11 U.S.C.M.A.
428, 29 C.M.R. 244 (1960).
Subsection (3)(C) is new and is self-explanatory.
Subsection
(3)(D) is based on United States v. Cumberledge and _
United States v. Chuculate_, both supra.
Subsection (1) and its discussion are new. See
Article 49(c). Detailing the deposition officer is a ministerial act. When
it is intended that the deposition officer issue a subpoena, it is important
that the deposition officer be properly detailed. In other cases, proper
detailing is not of critical importance so long as the deposition officer
is qualified. Cf. United States v. Ciarletta, supra.
Subsection
paragraph provided that the accused would have the same rights to counsel
as that for the trial at which the deposition could be used. Under R.C.M.
502, the accused has the right to qualified counsel at both general and special
courts-martial. If a summary court-martial is intended, ordinarily there
is no need for an oral deposition; instead, the summary court-martial should
be detailed and proceed to call the witness. Under subsection (g)(2)(A) the
accused at a summary court-martial is not entitled to counsel for a written
deposition. The first paragraph in the discussion is based on _United
States v. Catt_, 1 M.J. 41 (C.M.A. 1975); _United States v.
Timberlake_, 22 U.S.C.M.A. 117, 46 C.M.R. 117 (1973); _United
States v. Gaines, supra. See also_ R.C.M. 505(d)(2)(B) and analysis.
The second paragraph in the discussion is based on the second sentence in
paragraph 117 b(2) of MCM, 1969 (Rev.). The rule does not
prohibit the accused from waiving the right to counsel at a deposition. _
See_ R.C.M. 506(d); United States v. Howell, 11
U.S.C.M.A. 712, 29 C.M.R. 528 (1960).
Subsection (3) is new and
reflects the ministerial role of the deposition officer.
This subsection is based on Article 49(b) and paragraph 117 _
b_(4) of MCM, 1969 (Rev.). It is consistent with Fed. R. Crim. P.
15(b). See generally United States v. Donati, 14 U.S.C.M.A.
235, 34 C.M.R. 15 (1963).
This subsection is based on paragraphs 117 b(5),
(7), and (8) and c(3) and (4) of MCM, 1969 (Rev.). It is
organized to provide a deposition officer a concise list of the duties of
that office.
Subsection (1)(A) is based on paragraph 117 b(2)
of MCM, 1969 (Rev.); Fed. R. Crim. P. 15(b). _See also United States
b_ (6) and (7) of MCM, 1969 (Rev.). See also Fed.
R. Crim. P. 15(d). Subsection (2) is based on the first sentence of paragraph
117 b(2) and paragraph 117 _ c_ of MCM, 1969
(Rev.). Subsection (2)(B) is based on paragraph 117 c of
MCM, 1969 (Rev.). Note that if the accused and counsel can be present,
it ordinarily is feasible to conduct an oral deposition. Written interrogatories
are expressly provided for in Article 49.
Subsection (3) is new
and is based on Article 49(d) and (f), as amended, Military Justice Act of
1983, Pub. L. No. 98-209, § 6(b), 97 Stat. 1393 (1983).
The convening authority or military judge who orders the deposition has
discretion to decide whether it will be recorded in a transcript or by videotape,
audiotape, or similar material. Nothing in this rule is intended to require
that a deposition be recorded by videotape, audiotape, or similar material.
Factors the convening authority or military judge may consider include the
availability of a qualified reporter and the availability of recording equipment. _
See also United States v. Vietor_, 10 M.J. 69, 77 n.7 (C.M.A. 1980)
(Everett, C.J., concurring in the result).
This subsection is based on the second and third sentences of the
penultimate paragraph of paragraph 117 b of MCM, 1969 (Rev.)
and on Fed. R. Crim. P. 15(f). The waiver provisions are more specific than
in paragraph 117 b in order to ensure that objections are
made when the defect arises. This promotes efficiency by permitting prompt
corrective action. See Fed. R. Crim. P.15(f). This requirement
should not be applied so as to unduly impede the taking of a deposition,
however. Only objections to matters which are correctable on the spot need
be made. For example, an objection to opinion testimony should ordinarily
be made at the deposition so that the necessary foundation may be laid, if
possible. On the other hand, objections on grounds of relevance ordinarily
are inappropriate at a deposition. Subsection (1) is also based on _
United States v. Ciarletta supra. See also United States v. Gaines_ and
United States v. Bryson, both_supra_. Matters
which ordinarily are waived if not raised include lack of timely notice and
lack of qualifications of the deposition officer.
This subsection is based on Article 49(a) and on Fed. R. Crim. P.
15(g).
2015 Amendment: This rule was revised to implement Article 49, UCMJ, as amended by Section 532 of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291,
19 December 2014.
This subsection is based on Article 46.
Subsections (1) and (2) are based on the fourth paragraph of paragraph
115 a of MCM, 1969 (Rev.). The second paragraph in the discussion
is based on United States v. Roberts, 10 M.J. 308 (C.M.A.
1981). See also United States v. Jefferson, 13 M.J. 1 (C.M.A.
1982); United States v. Bennett, 12 M.J. 463 (C.M.A. 1982); _
United States v. Credit_, 8 M.J. 190 (C.M.A. 1980) (Cook, J.); _
United States v. Hampton_, 7 M.J. 284 (C.M.A. 1979); _United
States v. Tangpuz_, 5 M.J. 426 (C.M.A. 1978) (Cook, J.); _
United States v. Lucas_, 5 M.J. 167 (C.M.A. 1978); _United
States v. Williams_, 3 M.J. 239 (C.M.A. 1977); _United States
Iturralde-Aponte_, 1 M.J. 196 (C.M.A. 1975). Cf. Fed.
R. Crim. P. 17(b). See generally 8 J.Moore, _Moore's
Federal Practice_ Para. 17.05 (1982 rev.ed). Subsection (3) is based
on United States v. Bennett, supra; United States v. Daniels,
23 U.S.C.M.A. 94, 48 C.M.R. 655 (1974). _See also United States v.
Valenzuela-Bernal_, 458 U.S. 858, 102 S. Ct. 3440 (1982).
2007 Amendment: Subsection (b)(1) was amended to allow, under certain circumstances, the utilization of various types of remote testimony in lieu of the personal appearance of the witness.
This subsection is based generally on paragraph 115 a
of MCM, 1969 (Rev.). The procedure for obtaining witnesses under Fed. R.
Crim. P. 17 is not practicable in courts-martial. Under Fed. R. Crim. P.
17, witnesses are produced by process issued and administered by the court.
In the military trial judiciary, no comparable administrative infrastructure
capable of performing such a function exists, and it would be impracticable
to create one solely for that purpose. The mechanics and costs of producing
witnesses are the responsibility of the command which convened the court-martial.
Moreover, military judges often do not sit at fixed locations and must be
available for service in several commands or places. Note, however, that
any dispute as to production of a witness is subject to a judicial determination.
Experience has demonstrated that these administrative tasks should be the
responsibility of trial counsel.
Subsection (1) is based on the
first three sentences in the fourth paragraph of paragraph 115 _a
_ of MCM, 1969 (Rev.).
Subsection (2) is based generally
on the remainder of paragraph 115 a of MCM, 1969 (Rev.).
The procedure for production of defense witnesses prescribed in paragraph
115 a was questioned in several decisions. _See United
States v. Arias_, 3 M.J. 436, 439 (C.M.A. 1977); _United
States v. Williams, supra_ at 240 n.2; _United States v. Carpenter,
supra_ at 386 n.8. The practical advantages of that procedure were
recognized, however, in United States v. Vietor, 10 M.J.
69, 77 (C.M.A. 1980) (Everett, C.J., concurring in the result).
Subsection
earlier practice while retaining its practical advantages. For reasons states
above, the trial counsel is responsible for the administrative aspects of
production of witnesses. Thus, under subsection (2)(A) the defense submits
its list of witnesses to the trial counsel so that the latter can arrange
for their production. The trial counsel stands in a position similar to
a civilian clerk of court for this purpose. Because most defense requests
for witnesses are uncontested, judicial economy is served by routing the
list directly to the trial counsel, rather than to the military judge first.
This also allows the trial counsel to consider such alternatives as offering
to stipulate or take a deposition, or recommending to the convening authority
that a charge be withdrawn. See United States v. Vietor, supra. Further,
it allows arrangements to be made in a more timely manner, since the trial
counsel is usually more readily available than the military judge. Only if
there is a genuine dispute as to whether a witness must be produced is the
issue presented to the military judge by way of a motion.
Subsections
(2)(B) and (C) also further judicial economy and efficiency by facilitating
early arrangements for the production of witnesses and by permitting the
prompt identification and resolution of disputes. Subsection (2)(B) is based
on the fifth and sixth sentences of the fourth paragraph of paragraph 115 _
a_ of MCM, 1969 (Rev.). _See also United States v. Valenzuela-Bernal,
supra; United States v. Wagner_, 5 M.J. 461 (C.M.A. 1978); _
United States v. Lucas_, 5 M.J. 167 (C.M.A. 1978). _Cf. United
States v. Hedgwood_, 562 F.2d 946 (5th Cir. 1977), _cert,
denied_, 434 U.S. 1079 (1978); United States v. Barker,
553 F.2d 1013 (6th Cir. 1977). Subsection (2)(C) is new. _See generally
United States v. Menoken_, 14 M.J. 10 (C.M.A. 1982); and _
United States v. Johnson_, 3 M.J. 772 (A.C.M.R.), _pet. denied
_, 4 M.J. 50 (1977).
Subsection (2)(D) provides for resolution
of disputes concerning witness production by the military judge. Application
to the convening authority for relief is not required. It is permitted under
R.C.M. 905(j). The last sentence in this subsection is based on _
United States v. Carpenter, supra. See_ subsection (b) of this rule
as to the test to be applied.
This subsection is based on paragraph 116 of MCM, 1969 (Rev.). _
See also United States v. Johnson_, 22 U.S.C.M.A. 424, 47 C.M.R.
402 (1973); Hutson v. United States, 19 U.S.C.M.A. 437,
42 C.M.R. 39 (1970). Because funding for such employment is the responsibility
of the command, not the court-martial, and because alternatives to such
employment may be available, application to the convening authority is appropriate.
In most cases, the military's investigative, medical, or other agencies
can provide the necessary service. Therefore the convening authority should
have the opportunity to make available such services as an alternative. _
Cf. United States v. Johnson, supra; United States v. Simmons_,
44 C.M.R. 804 (A.C.M.R. 1971), pet. denied, 21 U.S.C.M.A.
628, 44 C.M.R. 940 (1972). This subsection has no reference to ratification
of employment of an expert already retained, unlike 18 U.S.C. § 3006A(e). _
See also_ Ms. Comp. Gen. B-49109 (June 25, 1949). This subsection
does not apply to persons who are government employees or under contract
to the Government to provide services which would otherwise fall within this
subsection. The reference in paragraph 116 of MCM, 1969 (Rev.), to service
regulations has been deleted as unnecessary.
Subsection (1) and the discussion are based on paragraph 115 _
b_ of MCM, 1969 (Rev.).
Subsection (2)(A) is consistent
with current practice.
Subsection (2)(B) is based on Fed. R. Crim.
P. 17(a) and (c) and on Appendix 17 of MCM, 1969 (Rev.). See Article
of paragraph 115 a of MCM, 1969 (Rev.). Note that the purpose
of producing books, papers, documents, and other objects before a proceeding
for inspection is to expedite the proceeding, not as a general discovery
mechanism. See Bowman Dairy Co. v. United States, 341 U.S.
214 (1951). See generally United States v. Nixon, 418 683
(1974).
Subsection (2)(C) is based on paragraph 79 b,
the third paragraph of paragraph 115 a, and the first sentence
of paragraph 115 d (1) of MCM, 1969 (Rev.). Authority for
the president of a court of inquiry and a deposition officer to issue a subpoena
is expressly added to fill the gap left by MCM, 1969 (Rev). in regard to
these procedures. _ See_ Article 47(a)(1), 135(f).
Subsection
(2)(D) is based on Fed. R. Crim. P. 17(d) and on the second sentence of
the fifth paragraph of paragraph 115 d(1) of MCM, 1969
(Rev.). See also 28 U.S.C. § 569(b). The discussion
is based on paragraph 115 d(1) of MCM, 1969 (Rev.).
Subsection
(2)(E) is based on Article 46 and the first sentence of paragraph 115 _
d_(1) of MCM, 1969 (Rev.). It parallels Fed. R. Crim. P. 17(e)(1).
Process in courts-martial does not extend abroad, except in occupied territory,
nor may it be used to compel persons within the United States to attend courts-martial
abroad. See Article 46; _United States v. Bennett,
supra; United States v. Daniels, supra; United States v. Stringer_,
5 U.S.C.M.A. 122, 17 C.M.R. 122 (1954). _But see United States v.
Daniels, supra_ at 97, 48 C.M.R. at 658 (Quinn, J. concurring in
the result) (suggesting possible use of 28 U.S.C. § 1783(a)
to secure presence of witness overseas to testify in a court-martial). The
discussion is based on the last paragraph of paragraph 115 d(1)
of MCM, 1969 (Rev.). Note that under subsection (2)(E)(iii) any civilians
in occupied territory are subject to compulsory process of the occupying
force.
Subsection (2)(F) is based on Fed. R. Crim. P. 17(c), but
is broader in that is not limited to a subpoena duces tecum. _Cf.
_ Fed. R. Crim. P. 17(f)(2).
Subsection (2)(G) and the
discussion are based on paragraphs 115 d(2) and (3), MCM,
1969 (Rev.). The definition of "warrant of attachment" is based
on 12 Op. Atty. Gen. 501, 502 (1868). The military power to use a warrant
of attachment is inherent in the power to subpoena. 12 Op. Atty. Gen. 501
754, which became Article of War 22 of 1916 (39 Stat. 654), the predecessor
of Article 46.). _ See also_ W. Winthrop, _Military
Law and Precedents_ 200-202, 202 n.46 (2d ed. 1920 reprint).
The power of attachment has been included in the Manuals for Courts-Martial
since 1895. Treatment of this enforcement provision in the Manual is in accord
with the legislative intent to "leave mechanical details as to the
issuance of process to regulation." H. R. Rep. No. 491, 81st Cong.,
1st Sess. 24 (1949). The power has been used and sustained. _See,
e.g., United States v. Shibley_, 112 F. Supp. 734 (S.D. Cal. 1953)
(court of inquiry). Federal civilian courts have previously used the warrant
of attachment but no longer do because the power to issue an arrest warrant
is implied from Fed. R. Crim. P. 46(b) and 18 U.S.C. § 3149. _
See Bacon v. United States_, 449 F.2d 933 (9th Cir. 1971) (arrest
of material witness for testimony at grand jury before actual disobedience
of subpoena). Warrants of attachment may be served in the same way and by
the same officials as subpoenas. By their nature warrants of attachment have
caused little litigation in military appellate courts. _ See generally
United States v. Sevaaetasi_, 48 C.M.R. 964 (A.C.M.R.), _
pet. denied_, 23 U.S.C.M.A. 620, 49 C.M.R. 889 (1974); _ United
States v. Ercolin_, 46 C.M.R. 1259 (A.C.M.R. 1973); _ United
States v. Feeley_, 47 C.M.R. 581 (N.C.M.R.), _pet. denied
_, 22 U.S.C.M.A. 635 (1973).
The procedure for issuing
warrants of attachment is modified somewhat. The warrant must be authorized
by the military judge, or, in special courts-martial without a military judge
and summary courts-martial_ (see_ subsection (e)(2)(G)(v)
of this rule), and for depositions and courts of inquiry, the convening
authority. Paragraph 115 d(3) of MCM, 1969 (Rev.) required
only that the trial counsel consult with the convening authority, or "after
the court was convened" the military judge. Subsection (e)(2)(G) now
requires written authorization from one of these persons. Second, subsection
(e)(2)(G)(ii) incorporates as requirements the standards in the third paragraph
115 d(3) of MCM, 1969 (Rev.). That paragraph was seemingly
advisory in nature. Subsection (e)(2)(G)(iv) is based on the second paragraph
and the first sentence of the last paragraph of paragraph 115 d(3)
of MCM, 1969 (Rev.). The last sentence of subsection (e)(2)(G)(iv) is new
and is intended to ensure that any detention under this rule is limited to
the minimum necessary to effect its purpose. These modifications provide
additional safeguards to ensure that detention of witnesses is exercised
only when necessary and appropriate. See generally Lederer,_
Warrants of Attachment-Forcibly Compelling the Attendance of Witnesses
_; 98 Mil. L. Rev. 1 (1982).
1998 Amendment. The
Discussion was amended to reflect the amendment of Article 47, UCMJ, in section
1111 of the National Defense Authorization Act for Fiscal Year 1996, Pub.
L. No. 104-106, 110 Stat. 186, 461 (1996). The amendment removes limitations
on the punishment that a federal district court may impose for a civilian
witness' refusal to honor a subpoena to appear or testify before a court-martial.
Previously, the maximum sentence for a recalcitrant witness was "a
fine of not more than $500.00, or imprisonment for not more than six months,
or both." The law now leaves the amount of confinement or fine to the
discretion of the federal district court.
This subsection is based generally on paragraph 115 a
and c of MCM, 1969 (Rev.). _See also United States
for production of witnesses. Discovery and introduction of classified or
other government information is covered by Mil. R. Evid. 505 and 506. Note
that unlike the standards for production of witnesses, there is no difference
in the standards for production of evidence on the merits and at sentencing.
The relaxation of the rules of evidence at presentencing proceedings provides
some flexibility as to what evidence must be produced at those proceedings.
This subsection recognizes both transactional and testimonial or
use immunity. See Pillsbury Co. v. Conboy, 459 U.S. 248
(1983); Kastigar v. United States, 406 U.S. 441 (1972); _
Murphy v. Waterfront Commission_, 378 U.S. 52 (1964). _ See
also_ 18 U.S.C. §§ 6001-6005; _United
States v. Villines_, 13 M.J. 46 (C.M.A. 1982). _See generally
_ H. Moyer, Justice and the Military 376-381
(1972); Green, _Grants of Immunity and Military Law, 1971-1976
, 73 Mil. L. Rev. 1 (1976) (hereinafter cited as Green II); Green,
Grants of Immunity and Military Law_, 53 Mil. L. Rev. 1 (1971) (hereinafter
cited as Green I).
Paragraph 68 h of MCM, 1969
(Rev.) expressly recognized transactional immunity. It did not address
testimonial immunity. Nevertheless, testimonial immunity has been used in
courts-martial. _See United States v. Villines, supra; United States
Rivera_, 49 C.M.R. 259 (A.C.M.R.1974), _rev'd on other grounds
_, 1 M.J. 107 (C.M.A. 1975). See also Mil. R. Evid.
301(c)(1).
Subsection (1) makes clear that transactional immunity
extends only to trial by court-martial. See Dept. of Defense
Dir. 1355.1 (July 21, 1981). Subsection (2) is written somewhat more broadly,
however. Use immunity under R.C.M. 704 would extend to a State prosecution.
Cf. Murphy v. Waterfront Commission, supra. Moreover,
although a convening authority is not independently empowered to grant immunity
extending to Federal civilian prosecutions, use immunity extending to such
cases may be granted by a convening authority when specifically authorized
under 18 U.S.C. §§ 6002 and 6004. See subsection
The second paragraph in the discussion is based
on 18 U.S.C. § 6004. The third paragraph in the discussion is
based on United States v. Rivera, 1 M.J. 107 (C.M.A. 1975); _
United States v. Eastman, supra._
This subsection clarifies the scope of R.C.M. 704. It is based on
the last clause in 18 U.S.C. § 6002. Note that this rule relates
only to criminal proceedings. A grant of immunity does not extend to administrative
proceedings unless expressly covered by the grant.
This subsection is new. It is intended to protect the parties to
a grant of immunity by reducing the possibility of misunderstanding or disagreement
over its existence or terms. Cf. Cooke v. Orser, supra.
The
first paragraph in the discussion is based on _United States v. Kirsch,
supra._
The second paragraph in the discussion is based
on United States v. Conway, 20 U.S.C.M.A. 99, 42 C.M.R.
291 (1970); United States v. Stoltz, 14 U.S.C.M.A. 461,
34 C.M.R. 241 (1964). See also United States v. Scoles,
14 U.S.C.M.A. 14, 33 C.M.R. 226 (1963); Green I, supra at
20-23.
The last paragraph in the discussion is based on
Mil. R. Evid. 301(c)(2) and United States v. Webster, 1
M.J. 216 (C.M.A. 1975).
This subsection is based on _ United States v. Villines,
supra_. Although there was no majority opinion in that case, each
judge recognized the problem of the need to immunize defense witnesses under
some circumstances, and each suggested different possible solutions. The
rule addresses these concerns and provides a mechanism to deal with them.
Note that the military judge is not empowered to immunize a witness. If the
military judge finds that a grant of immunity is essential to a fair trial,
the military judge will abate the proceedings unless immunity is granted
by an appropriate convening authority.
_1993 Amendment.
_ Subsection (e) to R.C.M. 704 was amended to make the military practice
for granting immunity for defense witnesses consistent with the majority
rule within the Federal Courts. United States v. Burns,
684 F.2d 1066 (2d Cir. 1982), cert. denied, 459 U.S. 1174
(1983); United States v. Shandell, 800 F.2d 322 (2d Cir.
1986); United States v. Turkish, 623 F.2d 769 (2d Cir. 1980), _
cert. denied_, 449 U.S. 1077 (1981); _United States v. Thevis
_, 665 F.2d 616 (5th Cir. 1982), cert. denied, 459
U.S. 825 (1982); United States v. Pennell, 737 F.2d 521 (6th
Cir. 1984); United States v. Taylor, 728 F.2d 930 (7th Cir.
1984); United States v. Brutzman, 731 F.2d 1449 (9th Cir.
1984); McGee v. Crist, 739 F.2d 505 (10th Cir. 1984); _
United States v. Sawyer_, 799 F.2d 1494 (11th Cir. 1986). The amended
rule conforms R.C.M. 704(e) with case law requiring the military judge to
consider the Government's interest in not granting immunity to the defense
witness. See United States v. Smith, 17 M.J. 994, 996 (A.C.M.R.
1984), pet. denied, 19 M.J. 71 (C.M.A. 1984); _
United States v. O'Bryan_, 16 M.J. 775 (A.F.C.M.R. 1983), _
pet. denied_, 218 M.J. 16 (C.M.A. 1984).
The majority
rule recognizes that an accused has no Sixth Amendment right to immunized
testimony of defense witnesses and, absent prosecutorial misconduct which
is intended to disrupt the judicial fact-finding process, an accused is
not denied Fifth Amendment due process by the Government's failure to immunize
a witness. If the military judge finds that the witness is a target for prosecution,
there can be no claim of Government overreaching or discrimination if the
grant of immunity is denied. United States v. Shandell, supra.
The
prior military rule was based on _United States v. Villines, supra
_, which had adopted the minority view espoused in Government
of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). This view permitted
the court to immunize also a defense witness when the witness' testimony
was clearly exculpatory, was essential to the defense case and there was
no strong Government interest in withholding testimonial immunity. This rule
has been sharply criticized. _See, e.g., United States v. Turkish,
supra; United States v. Taylor, supra; United States v. Pennel, supra;
United States v. Zayas_, 24 M.J. 132, 137 (C.M.A. 1987) (dissenting
opinion by Judge Cox).
The current rule continues to recognize
that a military judge is not empowered to immunize a witness. Upon a finding
that all three prerequisites exist, a military judge may only abate the proceedings
for the affected charges and specifications unless the convening authority
grants immunity to the witness.
Introduction. This rule is new. The code does
not address pretrial agreements, and MCM, 1969 (Rev.) did not discuss them.
Pretrial agreements have long existed and been sanctioned in courts-martial,
however, see United States v. Allen, 8 U.S.C.M.A. 504, 25
C.M.R. 8 (1957). See generally Gray, Pretrial Agreements,
37 Fed. Bar. J. 49 (1978). The rule recognizes the utility of pretrial agreements.
At the same time the rule, coupled with the requirement for judicial inquiry
in R.C.M. 910, is intended to prevent informal agreements and protect the
rights of the accused and the interests of the Government. _See also
Santobello v. New York_, 404 U.S. 257 (1971); Fed. R. Crim. P. 11(e); _
ABA Standards, Pleas of Guilty_ (1979).
This subsection is based on _United States v. Allen, supra.
_ Only the convening authority may enter a pretrial agreement with
an accused. See United States v. Caruth, 6 M.J. 184 (C.M.A.
1979); United States v. Johnson, 2 M.J. 541 (A.C.M.R. 1976); _
United States v. Crawford_, 46 C.M.R. 1007 (A.C.M.R. 1972). _
See also United States v. Troglin_, 21 U.S.C.M.A. 183, 44 C.M.R.
237 (1972). Pretrial agreements have long been subject to service regulations. _
See, e.g._, A.F.M. 111-1, para. 4-8 (May 13, 1980);
JAGMAN Section 0114 (June 11, 1982). Subsection (a) expressly continues such
authority. The discussion is based on Dept. of Defense Dir. 1355.1 (July
21, 1981).
This subsection recognizes the matters contained in pretrial agreements. _
See United States v. Cooke_, 12 M.J. 448 (C.M.A. 1982); _United
States v. Schaffer_, 12 M.J. 425 (C.M.A. 1982); _United States
_, 3 M.J. 314 (C.M.A. 1977); _United States v. Allen, supra.
_ As to prohibited and permitted terms and conditions, _
see_ subsection (c) of this rule. This discussion under subsection
(2)(C) is based on United States v. Cook, supra.
_
1994 Amendment:_ The amendment to the Discussion accompanying R.C.M.
705(b)(2)(C), regarding reinstitution of offenses withdrawn or dismissed
pursuant to a pretrial agreement and the standard of proof required of the
government to withstand a defense motion to dismiss the reinstituted offenses,
is based on United States v. Verrusio, 803 F.2d 885 (7th
Cir. 1986). Alternative procedures available in Federal civilian practice,
such as a motion by the government for relief from its obligation under the
agreement before it proceeds to the indictment stage (_see United
States v. Ataya_, 864 F.2d 1324, 1330 n.9 (7th Cir. 1988)), are
inapposite in military practice and thus are not required. _See generally
_ R.C.M. 801(a).
This subsection is intended to ensure that certain fundamental rights
of the accused cannot be bargained away while permitting the accused substantial
latitude to enter into terms or conditions as long as the accused does so
freely and voluntarily. Subsection (1)(B) lists certain matters which cannot
be bargained away. This is because to give up these matters would leave
no substantial means to ensure judicially that the accused's plea was provident,
that the accused entered the pretrial agreement voluntarily, and that the
sentencing proceedings met acceptable standards. _See United States
_, 1 M.J. 453 (C.M.A. 1976); United States v. Holland,
1 M.J. 58 (C.M.A. 1975); United States v. Care, 18 U.S.C.M.A.,
40 C.M.R. 247 (1969); United States v. Cummings, 17 U.S.C.M.A.
376, 38 C.M.R. 174 (1968); United States v. Allen, supra. The
discussion under subsection (2) is based on _United States v. Holland,
supra._ The rule is not intended to codify Holland to
the extent that Holland may prevent the accused from giving
up the right to make any motions before trial. _Cf. United States
condition, even if not otherwise prohibited, must be agreed to by the accused
freely and voluntarily. _Cf. United States v. Green, supra; United
States v. Care, supra._
Subsection (2) makes clear that
certain terms or conditions are not included in subsection (1)(B) and are
permissible so long as they are freely and voluntarily agreed to by the
accused. Since the accused may waive many matters other than jurisdiction,
in some cases by failure to object or raise a matter (see R.C.M.
905(e); Mil. R. Evid. 103(a)), or by a plea of guilty (see
R.C.M. 910(j) and Analysis), there is no reason why the accused should not
be able to seek a more favorable agreement by agreeing to waive such matters
as part of a pretrial agreement. Indeed, authorization for such terms or
conditions, coupled with the requirement that they be included in the written
agreement (see subsection (d)(3) of this rule) prevents _
sub rosa_ agreements concerning such matters and ensures that a careful
judicial inquiry into, and record of, the accused's understanding of such
matters will be made. The matters listed in subsection (2) have been judicially
sanctioned. As to subsection (2)(A), _see United States v. Thomas
_, 6 M.J. 573 (A.C.M.R. 1978). _Cf. United States v. Bertelson,
supra._ Subsection (2)(B) is based on _United States v.
Reynolds_, 2 M.J. 887 (A.C.M.R. 1976); _United States v.
Tyson_, 2 M.J. 583 (N.C.M.R. 1976). _See also United States
Stoltz_, 14 U.S.C.M.A. 461, 34 C.M.R. 241 (1964).
Subsection
(2)(C) is based on United States v. Callahan, 8 M.J. 804
(N.C.M.R. 1980); United States v. Brown, 4 M.J. 654 (A.C.M.R.
1977). Enforcement of a restitution clause may raise problems if the accused,
despite good faith efforts, is unable to comply. _See United States
Subsection (2)(D) is based on _
United States v. Dawson_, 10 M.J. 142 (C.M.A. 1982). Although the
post-trial misconduct provision in Dawson was rejected, a
majority of the court was apparently willing to permit such provisions if
adequate protections against arbitrary revocation of the agreement are provided.
However, see United States v. Connell, 13 M.J. 156 (C.M.A.
without detailed analysis. Subsection (D) provides the same protections as
revocation of a suspended sentence requires. See R.C.M.
1109 and Analysis. Given such protections, there is no reason why an accused
who has bargained for sentence relief such as a suspended sentence should
enjoy immunity from revocation of the agreement before action but not afterward.
Other decisions have suggested the validity of post-trial misconduct provisions. _
See United States v. Goode_, 1 M.J. 3 (C.M.A. 1975); _United
States v. Thomas, supra; United States v. French_, 5 M.J. 655 (N.C.M.R.
1978). Cf. United States v. Lallande, 22 U.S.C.M.A. 170,
46 C.M.R. 170 (1973).
Subsection (2)(E) is based on _United
States v. Schaffer, supra; United States v. Mills, supra; United States
exhaustive. The right to enlisted members may be waived, for example.
_
1991 Amendment:_ Subsection (2) was amended to clarify that either
side can propose the inclusion of the listed terms in a pretrial agreement.
This conforms to the amendment to R.C.M. 705(d).
This subsection ensures that an offer to plead guilty pursuant to
a pretrial agreement originates with the accused, and that the accused freely
and voluntarily enters a pretrial agreement. At the same time it recognizes
that a pretrial agreement is the product of negotiation and discussion on
both sides, each of which is free to refuse to enter an agreement and go
to trial. Subsection (1) is based on _ United States v. Schaffer, supra.
_ This subsection, together with the prohibition against terms not
freely and voluntarily agreed to by the accused and the requirement in R.C.M.
910 for an inquiry into the agreement, should prevent prosecutorial pressure
or improper inducements to the accused to plead guilty or to waive rights
against the accused's wishes or interest. _See United States v. Schaffer,
supra_ at 428-429.
Subsection (2) provides that
once plea discussions are initiated by the defense the convening authority
or a representative may negotiate with the defense. This recognizes that,
while the offer must originate with the defense, the specific provisions
in an agreement may be the product of discussions with the Government. _
Schaffer, Mills, and Schmeltz_ suggest that each term must originate
with the defense. R.C.M. 705 is consistent with this insofar as it requires
that the offer to plead guilty originate with the accused (subsection (d)(1)),
that the written proposal be prepared by the defense (subsection (d)(3)),
and that the accused enter or agree to each term freely and voluntarily
(subsection (c)(1)(A)). It is of no legal consequence whether the accused's
counsel or someone else conceived the idea for a specific provision so long
as the accused, after thorough consultation with qualified counsel, can
freely choose whether to submit a proposed agreement and what it will contain. _
See United States v. Munt_, 3 M.J. 1082 (A.C.M.R. 1977), _
pet. denied_, 4 M.J. 198 (C.M.A. 1978).
Subsection (3)
ensures that all understandings be included in the agreement. This is in
the interest of both parties. See United States v. Cooke,
11 M.J. 257 (C.M.A. 1981); United States v. Lanzer, 3
M.J. 60 (C.M.A. 1977); United States v. Cox , 22 U.S.C.M.A.
69, 46 C.M.R. 69 (1972). The last sentence is based on _United States
authority to sign the agreement. Although the convening authority must personally
approve the agreement, (see subsection (a)) and has sole
discretion whether to do so under subsection (4), the convening authority
need not personally sign the agreement. In some circumstances, it may not
be practicable or even physically possible to present the written agreement
to the convening authority for approval. The rule allows flexibility in
this regard. The staff judge advocate, trial counsel, or other person authorized
by the convening authority to sign may do so. Authority to sign may by granted
orally. Subsection (3) is not intended to preclude oral modifications in
the agreement from being made on the record at trial with the consent of
the parties.
Subsection (5) makes clear that neither party is
bound by a pretrial agreement until performance begins. _See United
States v. Kazena_, 11 M.J. 28 (C.M.A. 1981). In _Shepardson
convening authority may be bound by a pretrial agreement before entry of
a plea of guilty if the accused has detrimentally relied on the agreement.
The Court indicated, however, that not all forms of reliance by the accused
rise to the level of detrimental reliance as it used that term. Thus the
Court held in Shepardson that exclusion of statements allegedly
made by the accused as a result of the agreement (but not necessarily pursuant
to it) was an adequate remedy, and enforcement of the agreement was not
required when the convening authority withdrew from it before trial. Similarly,
the Court opined that the fact that an accused made arrangements to secure
employment or took similar actions in reliance on an agreement would not
require enforcement of a pretrial agreement. Subsection (5) is consistent
with this approach, but uses beginning of performance by the accused to
provide a clearer point at which the right of the convening authority to
withdraw terminates. Note that the beginning of performance is not limited
to entry of a plea. It would also include testifying in a companion case,
providing information to Government agents, or other actions pursuant to
the terms of an agreement.
Note that the accused may withdraw
from a pretrial agreement even after entering a guilty plea or a confessional
stipulation, but, once the plea is accepted or the stipulation admitted,
could not withdraw the plea or the stipulation except as provided under R.C.M.
910(h) or 811(d). The fact that the accused may withdraw at any time affords
the accused an additional measure of protection against prosecutorial abuse.
It also reflects the fact that the convening authority can retrieve any relief
granted the accused. See Article 63; _United States
1991 Amendment: R.C.M.
705(d) was amended to authorize either party to initiate pretrial agreement
negotiations and propose terms and conditions. The amendment does not change
the general rule that all terms and conditions of a pretrial agreement proposed
pursuant to this rule must not violate law, public policy, or regulation.
Subparagraph (1) was eliminated and subparagraphs (2)-(5), as amended,
were renumbered (1)-(4), respectively. This amendment is patterned
after federal civilian practice [see Fed. R. Crim. P. 11(e)]
where there is no requirement that negotiations for plea agreements originate
with the defense. In courts-martial the military judge is required to conduct
an exhaustive inquiry into the providence of an accused's guilty plea and
the voluntariness of the pretrial agreement. R.C.M. 705(c) ensures that certain
fundamental rights of the accused cannot be bargained away. Furthermore
it can be difficult to determine which side originated negotiations or proposed
a particular clause. Cf. United States v. Jones, 23 M.J.
305, 308-309 (C.M.A. 1987) (Cox, J., concurring).
This subsection is based on _United States v. Green, supra;
United States v. Wood_, 23 U.S.C.M.A. 57, 48 C.M.R. 528 (1974). _
See also_ R.C.M. 910(f); Mil. R. Evid. 410.
This rule is taken from paragraph 121 of MCM, 1969 (Rev.).
Minor changes were made in order to conform with the format and style of
the Rules for Courts-Martial. _See also United States v. Cortes-Crespo
_, 13 M.J. 420 (1982); United States v. Frederick,
3 M.J. 230 (C.M.A. 1977); Mil. R. Evid. 302 and Analysis. The rule is generally
consistent with 18 U.S.C. § 4244. The penultimate paragraph
in paragraph 121 is deleted as an unnecessary statement.
_
1987 Amendment:_ Subsection (c)(1) was modified, in light of changes
to federal law, to allow the use of available clinical psychologists. _
See_ 18 U.S.C. §§ 4241, 4242, and 4247. Subsection
(c)(2) was revised to implement Article 50a, which was added to the UCMJ
in the "Military Justice Amendments of 1986,"
tit. VIII, § 802, National Defense
Authorization Act for fiscal year 1987, Pub. L. No. 99-661, 100 Stat.
3905 (1986). Article 50a adopted some provisions of the Insanity Defense
Reform Act, ch. IV, Pub. L. No. 98-473, 98 Stat. 2057 (1984). _
See also_ Analysis of R.C.M. 916(k). The subsection dealing with
the volitional prong of the American Law Institute's Model Penal Code test
was deleted. Subsection (A) was amended by adding and defining the word "severe." _
See_ R.C.M. 916(k)(1); S. Rep. No. 225, 98th Cong., 1st Sess. 229
(1983), _ reprinted in_ 1984 U.S. Code Cong. & Ad. News
1, 231. Subsection (C) was amended to state the cognitive test as now set
out in R.C.M. 916(k)(1).
1998 Amendment. Subsection
(c)(2)(D) was amended to reflect the standard for incompetence set forth
in Article 76b, UCMJ.
Introduction. This rule applies the accused's
speedy trial rights under the 6th Amendment and Article 10, UCMJ, and protects
the command and societal interest in the prompt administration of justice. _
See generally Barker v. Wingo_, 407 U.S. 514 (1972); _United
States v. Walls_, 9 M.J. 88 (C.M.A. 1980). The purpose of this rule
is to provide guidance for granting pretrial delays and to eliminate after-the-fact
determinations as to whether certain periods of delay are excludable. This
rule amends the former rule, which excluded from accountable time periods
covered by certain exceptions.
This subsection is based on _ABA Standards for Criminal
Justice, Speedy Trial_, 12-2.1, 12-2.2 (1986). The ABA
Standards set no time limit but leave the matter open depending on local
conditions. The basic period from arrest or summons to trial under _
The Federal Speedy Trial Act_, 18 U.S.C. § 3161, is
100 days. The period of 120 days was selected for courts-martial as a reasonable
outside limit given the wide variety of locations and conditions in which
courts-martial occur. The dates of the events which begin government accountability
are easily ascertainable and will avoid the uncertainty involved in _
Thomas v. Edington_, 26 M.J. 95 (C.M.A. 1988).
The
90-day rule previously established in R.C.M. 707(d) has been eliminated.
As such, the 120-day rule established in subsection (a) of this rule applies
to all cases, not just cases where the accused is in pretrial confinement.
Judicial decisions have held, however, that when an accused has been held
in pretrial confinement for more than 90 days, a presumption arises that
the accused's right to a speedy trial under Article 10, UCMJ has been violated.
In such cases, the government must demonstrate due diligence in bringing
the case to trial. United States v. Burton, 44 C.M.R. 166
(C.M.A. 1971). Unless _ Burton_ and its progeny are reexamined,
it would be possible to have a Burton violation despite
compliance with this rule.
2002 Amendment: Burton and
its progeny were re-examined in United States v. Kossman,
38 M.J. 258 (C.M.A. 1993), where the Court of Military Appeals specifically
overruled Burton and reinstated the earlier rule from _United States
See Kossman_, 38 M.J. at 262. In Kossman, the Court
reinstated the "reasonable diligence" standard in determining
whether the prosecution's progress toward trial for a confined accused was
sufficient to satisfy the speedy trial requirement of Article 10, UCMJ.
The
discussion is based on United States v. McDonald, 456 U.S.
1 (1982); United States v. Marion, 404 U.S. 307 (1971). _
See also United States v. Lovasco_, 431 U.S. 783 (1977). Delay before
restraint or referral of charges could raise due process issues. _
See id.; United States v. McGraner_, 13 M.J. 408 (C.M.A. 1982). _
See generally_ Pearson and Bowen, _Unreasonable Pre-Preferral
Delay_, 10 A.F. JAG Rptr. 73 (June 1981).
Subsection (1) is based on United States v. Manalo,
1 M.J. 452 (C.M.A. 1976). The reference to R.C.M. 304(a)(2)-(4) conforms
to the language of R.C.M. 707(a)(2).
Subsection (2) is based
on ABA Standards, supra at 12-2.2(a) (1986). _
See also United States v. Talaveraz_, 8 M.J. 14 (C.M.A. 1979).
Subsection
(3)(A) establishes that a mistrial or dismissal by any proper authority begins
a new trial period. This subsection clarifies the date from which to begin
measuring new time periods in cases involving rereferral, restraint, or
no restraint.
Subsection (3)(B) clarifies the intent of this portion
of the rule. The harm to be avoided is continuous pretrial restraint. _
See United States v. Gray_, 21 M.J. 1020 (N.M.C.M.R. 1986). Where
an accused is released from pretrial restraint for a substantial period,
he will be treated the same as an accused who was not restrained. Therefore,
unless the restraint is reimposed, the 120-day time period will run from
the date of preferral or entry on active duty regardless of whether that
event occurs before or after the accused was released from restraint.
Subsection
(3)(C) clarifies the effect of government appeals on this rule. This subsection
treats all government appeals the same. Once the parties are given notice
of either the government's decision not to appeal under R.C.M. 908(b)(8)
or the decision of the Court of Criminal Appeals under R.C.M. 908(c)(3),
a new 120-day period begins.
This subsection clarifies how time
should be counted for those charges not affected by the ruling that is subject
to appeal. Under R.C.M. 908(b)(4), trial on such charges may in some circumstances
proceed notwithstanding the appeal, or trial may await resolution of the
appeal. Since the traditional policy of resolving all known charges at a
single trial has not changed (see R.C.M. 906(b)(10), Discussion),
charges not the subject of the appeal may be properly delayed without violating
this rule. Accordingly where the trial is interrupted by a government appeal,
all charges may be treated the same and proceeded upon at the same time
once the appeal is resolved.
_ 2004 Amendment:_ Subsection
(3)(D) was amended in light of United States v. Becker, 53
M.J. 229 (2000), to clarify that the 120-day time period applies to sentence-only
rehearings. The amendment also designates the first session under R.C.M.
803 as the point at which an accused is brought to trial in a sentence-only
rehearing.
This subsection, based on _ABA Standards for Criminal Justice,
Speedy Trial_, 12-1.3 (1986), follows the principle that the
government is accountable for all time prior to trial unless a competent
authority grants a delay. See United States v. Longhofer,
29 M.J. 22 (C.M.A. 1989). The rule of procedure established in subsection
1989). See also United States v. Carlisle, 25 M.J. 426,
428 (C.M.A. 1988).
The discussion to subsection (1) provides
guidance for judges and convening authorities to ensure the full development
of speedy trial issues at trial. _See United States v. Maresca, supra.
_ This amendment follows ABA guidance and places responsibility on
a military judge or the convening authority to grant reasonable pretrial
delays. Military judges and convening authorities are required, under this
subsection, to make an independent determination as to whether there is in
fact good cause for a pretrial delay, and to grant such delays for only
so long as is necessary under the circumstances. _ ABA Standards, supra
_ at 12 -1.3; United States v. Longhofer, supra. Decisions
granting or denying pretrial delays will be subject to review for both abuse
of discretion and the reasonableness of the period of delay granted. _
Id.; United States v. Maresca, supra._
_1998 Amendment.
_ In creating Article 76b, UCMJ, Congress mandated the commitment
of an incompetent accused to the custody of the Attorney General. As an
accused is not under military control during any such period of custody,
the entire period is excludable delay under the 120-day speedy trial rule.
_
2004 Amendment:_ Subsection (c) was amended to treat periods
of the accused's unauthorized absence as excludable delay for purposes of
speedy trial. See United States v. Dies, 45 M.J. 376 (1996).
The Discussion was deleted as superfluous.
This subsection is based on _The Federal Speedy Trial Act
_, 18 U.S.C. § 3162. The Federal Rule provides dismissal
as the sanction for speedy trial violations but permits the judge to dismiss
with or without prejudice. Accordingly, this subsection permits the judge
to dismiss charges without prejudice for non-constitutional violations of
this rule. If, however, the accused has been denied his or her constitutional
right to a speedy trial, the only available remedy is dismissal with prejudice. _
Strunk v. United States_, 412 U.S. 434 (1973).
_ 2004
Amendment:_ Subsection (d) was amended in light of _United
States v. Becker,_ 53 M.J. 229 (2000), to provide for sentence relief
as a sanction for violation of the 120-day rule in sentence-only rehearings.
The amendment sets forth factors for the court to consider to determine whether
or to what extent sentence relief is appropriate and provides for the sentence
credit to be applied to the sentence approved by the convening authority.
A lack of a demand for immediate trial will not constitute waiver
and will not preclude an accused from raising speedy trial issues at trial. _
See Barker v. Wingo, supra._
This subsection is based on paragraphs 39 b and
40 b(2) and the first sentence of paragraph 57 _
a_ of MCM, 1969 (Rev.). It is intended to provide the military judge
or president of a special court-martial without a military judge broad authority
to regulate the conduct of courts-martial within the framework of the code
and the Manual, and to establish the outlines of their responsibilities.
Much of the discussion is also derived from paragraphs 39 b,
40 b(2), and 53 g of MCM, 1969 (Rev.).
A few minor changes have been made. For instance, the military judge, not
the president, determines the uniform to be worn, and the military judge
is not required to consult with the president, nor is the president of a
special court-martial without a military judge required to consult with trial
counsel, concerning scheduling. As a practical matter, consultation or coordination
among the participants concerning scheduling or uniform may be appropriate,
but the authority for these decisions should rest with the presiding officer
of the court, either military judge or president of a special court-martial
without a military judge, without being required to consult with others.
2015 Amendment: R.C.M. 801(a)(6) was created to implement Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.
This subsection is taken from paragraph 54 b of
the MCM, 1969 (Rev.). Some of the language in paragraph 54 b has
been placed in the discussion.
This subsection is taken from paragraph 55 a of
MCM, 1969 (Rev.). The discussion is designed to accomplish the same purpose
as paragraph 55 b of MCM, 1969 (Rev.), although the language
is no longer in terms which could be construed as jurisdictional.
This subsection is similar in substance to paragraph 57 of MCM,
1969 (Rev.) and is based on Articles 51(b) and 52(c).
Subsections
801(e)(1)(C); 801(e)(2)(C)) permitting a military judge or president of a
special court-martial without a military judge to change a ruling previously
made (Article 51(b)) have been modified to preclude changing a previously
granted motion for finding of not guilty. _United States v. Hitchcock
_, 6 M.J. 188 (C.M.A. 1979). Under R.C.M. 916(k) the military judge
does not rule on the question of mental responsibility as an interlocutory
matter. See Analysis, R.C.M. 916(k). Thus there are no
rulings by the military judge which are subject to objection by a member.
Subsection
(2)(D) makes clear that all members must be present at all times during special
courts-martial without a military judge. The president of a special court-martial
lacks authority to conduct the equivalent of an Article 39(a) session. _
Cf. United States v. Muns_, 26 C.M.R. 835 (C.G.B.R. 1958).
Subsection
c, d, f_, and g of MCM, 1969 (Rev.). Some language
from paragraph 57 g has been placed in the discussion.
Subsection
The rule recognizes, however, that a different standard of proof may apply
to some interlocutory questions. See, e.g., Mil. R. Evid.
314(e)(5). The assignments of the burden of persuasion are determined by
specific rules or, in the absence of a rule, by the source of the motion.
This represents a minor change from the language in paragraph 67 _
e_ of MCM, 1969 (Rev.), which placed the burden on the accused for
most questions. This assignment was rejected by the Court of Military Appeals
in several cases, see, e.g., United States v. Graham,
22 U.S.C.M.A. 75, 46 C.M.R. 75 (1972). Assignments of burdens of persuasion
and, where appropriate, going forward are made in specific rules. "Burden
of persuasion" is used instead of the more general "burden of
proof" to distinguish the risk of non persuasion once an issue is raised
from the burden of production necessary to raise it. _See McCormick's
Handbook of the Law of Evidence_ § 336 (E. Cleary
ed. 1972). For example, although the defense may have the burden of raising
an issue (e.g., statute of limitations), once it has done so the prosecution
may bear the burden of persuasion.
The discussion under subsection
questions, and between questions of fact and questions of law. It is taken,
substantially, from paragraph 57 b of MCM, 1969 (Rev.).
As to the distinction between questions of fact and questions of law, _
see United States v. Carson_, 15 U.S.C.M.A. 407, 35 C.M.R. 379 (1965).
The discussion of issues which involve both interlocutory questions and questions
determinative of guilt is based on United States v. Bailey,
6 M.J. 965 (N.C.M.R. 1979); United States v. Jessie, 5
M.J. 573 (A.C.M.R.), pet, denied, 5 M.J. 300 (1978). It
is similar to language in the third paragraph of paragraph 57 _b
_ of MCM, 1969 (Rev.), which was based on _United States v.
Ornelas_, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952). _See Analysis
of Contents, Manual for Courts-Martial, United States, 1969, Revised Edition
_, DA PAM 27-2, 10-5 (July 1970). That example, and
the decision in United States v. Ornelas, supra were questioned
in United States v. Laws, 11 M.J. 475 (C.M.A. 1981). The
discussion clarifies that when a military offense (i.e., one which requires
that the accused be a "member of the armed forces,"_
see_ Articles 85, 86, 99; _ see also_ Articles 88-91,
of the armed forces, two separate questions are raised by that contention:
first, whether the accused is subject to court-martial jurisdiction
(see R.C.M. 202); and, second, whether, as an element of the offense,
the accused had a military duty which the accused violated (e.g., was absent
from the armed forces or a unit thereof without authority). The first question
is decided by the military judge by a preponderance of the evidence. The
second question, to the extent it involves a question of fact, must be decided
by the factfinder applying a reasonable doubt standard. _United States
(C.M.A. 1983); United States v. Marsh, 15 M.J. 252 (C.M.A.
1983); United States v. McDonagh, 14 M.J. 415 (C.M.A. 1983).
Thus it would be possible, in a case where larceny and desertion are charged,
for the military judge to find by a preponderance of the evidence that the
accused is subject to military jurisdiction and for the members to convict
of larceny but acquit of desertion because they were not satisfied beyond
reasonable doubt that the accused was a member of the armed forces.
_
Ornelas_ does not require a different result. The holding in _
Ornelas_ was that the law officer (military judge) erred in failing
to permit the members to resolve a contested issue of the accused's status
as a servicemember on a desertion charge. Language in the opinion to the
effect that the "jurisdictional" issue should have been submitted
to the members is attributable to language in paragraph 67 e of
MCM, 1951, which suggested that "defenses," including "jurisdiction,"
were to be resolved by the members. Such a procedure for resolving motions
to dismiss has been abolished. See R.C.M. 905; 907; and
resolving jurisdiction is not required by the Manual. _See generally
United States v. Laws, supra. Cf. United States v. McDonagh, supra._ On
the other hand, when military status is an element of the offense, the fact
of such military status must be resolved by the factfinder. _Cf. United
States v. McGinnis _and United States v. Marsh,
both supra.
This subsection is based on paragraph 39 c of MCM,
1969 (Rev.). Paragraph 39 c did not include a reference
to rulings and instructions by the president of a special court-martial
without a military judge, nor was specific reference to them made elsewhere
in the Manual. Since such rulings and instructions are subject to the same
review as those of a military judge, the same standard should apply to both
at this stage. The rule is based on Article 54. The discussion refers to
R.C.M. 808 and 1103 to indicate what must be recorded at trial. Concerning
requirements for verbatim records, see United States v. Douglas,
1 M.J. 354 (C.M.A. 1976); United States v. Boxdale, 22 U.S.C.M.A.
414, 47 C.M.R. 351 (1973); United States v. Weber, 20 U.S.C.M.A.
82, 42 C.M.R. 274 (1970).
This subsection is based on Fed. R. Crim. P. 12(f), except for the
addition of the term "motions" to make clear that motions may
be covered by the rule and changes to conform to military terminology and
procedure. Such waiver provisions are more specifically implemented as to
many matters throughout the Rules. Several examples are listed in the discussion.
Introduction. This rule is new. It is based on
Fed. R. Crim. P. 17.1, but is somewhat broader and more detailed. Fed. R.
Crim. P. 17.1 apparently authorizes, by its title, only pretrial conferences.
Conferences other than pretrial conferences are also authorized in federal
practice. See Fed. R. Crim. P. 43(c)(3); _Cox v.
United States_, 309 F.2d 614 (8th Cir. 1962). R.C.M. 802 applies
to all conferences. Nothing in this rule is intended to prohibit the military
judge from communicating, even ex parte, with counsel concerning routine
and undisputed administrative matters such as scheduling, uniform, and travel
arrangements. Such authority was recognized in the fourth sentence of paragraph
39 _ c_ of MCM, 1969 (Rev.).
Like Fed. R. Crim.
P. 17.1, this rule provides express authority for what is already common
practice in many courts-martial, and regularizes the procedure for them.
Fed. R. Crim. P. 17.1 is designed to be used in unusual cases, such as complicated
trials. Conferences are needed more frequently in courts-martial because
in many instances the situs of the trial and the home bases of the military
judge, counsel, and the accused may be different. Even when all the participants
are located at the same base, conferences may be necessary. _See ABA
Standards, Discovery and Procedural Before Trial_ § 11-5.4
(1978). After the trial has begun, there is often a need to discuss matters
in chambers. _ Cf._ Fed. R. Crim. P. 43(c); _United
States v. Gregorio_, 497 F.2d 1253 (4th Cir.), _ cert. denied
_, 419 U.S. 1024 (1974).
This subsection is taken directly from the first sentence of Fed.
R. Crim. P. 17.1, with modifications to accommodate military terminology.
Subsection (c) provides that a conference may not proceed over the objection
of a party and that, in effect, matters may be resolved at a conference only
by agreement of the parties. Thus, the military judge can bring the parties
together under subsection (a), but a conference could not proceed further
without the voluntary participation of the parties. Nothing in this rule
is intended to prohibit the military judge from communicating to counsel,
orally or in writing, matters which may properly be the subject of rules
of court. See R.C.M. 108; 801. This is also true under the
federal rule. _See Committee on Pretrial Procedure of the Judicial
Conference of the United States, Recommended Procedures in Criminal Trials
_, 37 F.R.D. 95, 98 (1965); C. Wright, _Wright's Federal Practice
and Procedure_ Para. 292 (1969). _Cf. United States v. Westmoreland
_, 41 F.R.D. 419 (S.D. Ind. 1967).
The discussion provides
some examples of the potential uses of conferences. As noted, issues may
be resolved only by agreement of the parties; they may not be litigated or
decided at a conference. To do so would exceed, and hence be contrary to,
the authority established under Article 39(a). The prohibition against judicial
participation in plea bargaining is based on _United States v. Caruth
_, 6 M.J. 184, 186 (C.M.A. 1979). _Cf. United States v. Allen
_, 8 U.S.C.M.A. 504, 25 C.M.R. 8 (1957). _But, cf. ABA Standards,
Pleas of Guilty_ § 14-3.3(c) (1979).
This subsection is based on the second sentence in Fed. R. Crim.
P. 17.1. The federal rule requirement for a written memorandum was rejected
as too inflexible and unwieldy for military practice. The interests of the
parties can be adequately protected by placing matters on the record orally.
If any party fears that such an oral statement will be inadequate, that party
may insist on reducing agreed-upon matters to writing as a condition of
consent. In any event, a party is not prohibited from raising the matters
again at trial. See subsection (c) below.
The
waiver provision has been added because the conference is not part of the
record of trial under Article 54. The purpose of the requirement for inclusion
in the record is to protect the parties, and therefore it may be waived. _
United States v. Stapleton_, 600 F.2d 780 (9th Cir. 1979).
This subsection does not appear in the federal rule. It is intended
to ensure that conferences do not become a substitute for Article 39(a)
sessions. In this respect Fed. R. Crim. P. 17.1 is broader than R.C.M. 802,
since the federal rule apparently includes "conferences" held
on the record and permits the parties to be bound by matters resolved at
the conference. See C. Wright, _ supra_ at
Para. 292.
1991 Amendment: The prohibition
against conferences proceeding over the objection of any party was eliminated
as it conflicted with the military judge's specific authority to order conferences
under section (a) of this rule and general authority to control the conduct
of court-martial proceedings. While the military judge may compel the attendance
of the parties, neither party may be compelled to resolve any issue or be
pressured to make any concessions.
This subsection does not appear in Fed. R. Crim. P. 17.1. The silence
of the federal rule on this matter has been controversial. See Douglas,
J., dissenting from approval of Fed. R. Crim. P. 17.1 at 39 F.R.D. 276,
278 (1966). See also 8 J. Moore, _Moore's Federal
Practice_ Para. 17.1.02 [1]; 17.1.03 [3]
(1982 rev. ed.); Rezneck, _The New Federal Rules of Criminal Procedure
_, 54 Geo. L. J. 1276, 1294-99 (1966); _ABA Standards,
Discovery and Procedure Before Trial_ § 11-5.4(a)
(1978). The presence of the accused is not necessary in most cases since
most matters dealt with at conferences will not be substantive. The participation
of the defense in conferences and whether the accused should attend are matters
to be resolved between defense counsel and the accused.
Fed.
R. Crim. P. 43(c)(2) authorizes conferences concerning questions of law to
be held without the presence of the accused. The proceedings described in
Fed. R. Crim. P. 43(c)(2) are analogous to those described in Article 39(a)(2),
since the judge may make rulings at a 43(c)(2) conference and such a conference
is "on the record." Article 39(a) expressly gives the accused
the right to be present at similar proceedings in courts-martial. Because
of this inconsistency, Fed. R. Crim. P. 43(c)(2) is not adopted. Questions
of law may be discussed at a conference under R.C.M. 802, but the military
judge may not decide them at such conferences.
This subsection is taken from the third sentence of Fed. R. Crim.
P. 17.1.
This subsection is based on the last sentence in Fed. R. Crim. P.
17.1, with the addition of the prohibition against conferences in special
courts-martial without a military judge.
Article 39(a) authorizes the military judge to call and conduct
sessions outside the presence of members. The discussion contains a general
description, based on paragraph 53 d(1) of MCM, 1969 (Rev.),
of the types of matters which may be dealt with at Article 39(a) sessions.
The quoted language in the first paragraph of the discussion is found in
the legislative history of Article 39(a). See S. Rep. No.
1601, 90th Cong., 2nd Sess. 9-10 (1968).
The rule modifies
the language concerning Article 39(a) sessions after sentence is announced.
The former provision permitted such sessions only "when directed by
the appropriate reviewing authority." Yet paragraphs 80 _b
_ and c of MCM, 1969 (Rev.) implied that a military
judge could call such a session on the judge's own motion. R.C.M. 1102 also
authorizes such action.
The first two paragraphs of the discussion
are based on the second and third paragraphs of paragraph 53 d(1)
of MCM, 1969 (Rev.), except that the present language omits "defenses"
from the matters a military judge may hear at an Article 39(a) session. Clearly
a military judge does not rule on the merits of a defense at an Article
39(a) session, and matters collateral to a defense which might be heard at
an Article 39(a) session are adequately described elsewhere in the discussion.
As
to the third paragraph of the discussion, see Articles 35
and 39. See also United States v. Pergande, 49 C.M.R. 28
(A.C.M.R. 1974).
Introduction. Subsections (a) and (b) of
this rule are very similar to Fed. R. Crim. P. 43(a) and (b). Subsection
was not adopted since it is not compatible with military practice, as it
concerns corporate defendants, misdemeanor proceedings, conferences or arguments
upon questions of law, and sentence reduction proceedings. Of these, only
presence of the accused at conferences or arguments upon questions of law
has relation to military procedure. Article 39(b) would preclude absence
by the accused from arguments, except as provided in subsection (b). Conferences
are treated in R.C.M. 802.
Other differences between this rule
and Fed. R. Crim. P. 43 and paragraphs 11 and 60 of the MCM, 1969 (Rev.)
are discussed below.
Article 39 establishes the right of the accused to be present at
all trial proceedings and Article 39(a) sessions. The right is grounded
in the due process clause of the Fifth Amendment and the right to confrontation
clause of the Sixth Amendment of the Constitution. This subsection is basically
the same as Fed. R. Crim. P. 43(a) with modifications in language to conform
to military procedures.
The requirement that the accused be present
is not jurisdictional. While proceeding in the absence of the accused, without
the express or implied consent of the accused, will normally require reversal,
the harmless error rule may apply in some instances. _See United
States v. Walls_, 577 F.2d 690 (9th Cir.) cert. denied,
439 U.S. 893 (1978); United States v. Nelson, 570 F.2d
258 (8th Cir. 1978); United States v. Taylor, 562 F.2d 1345
(2d Cir.), cert. denied, 434 U.S. 853 (1977).
This subsection is similar to Fed. R. Crim. P. 43(b). Aside from
modifications in terminology, two minor substantive changes have been made.
First, this subsection specifies that sentencing, as well as trial on the
merits, may take place when the accused is absent under this rule. Such a
construction is necessary in the military because delaying a sentence determination
increases the expense and inconvenience of reassembling the court-martial
and the risk that such reassembly will be impossible. Federal courts do not
face a similar problem. See United States v. Houghtaling,
2 U.S.C.M.A. 230, 235, 8 C.M.R. 30, 35 (1953).
The second change
substitutes the word "arraignment" for "the trial has commenced."
This is a clearer demarcation of the point after which the accused's voluntary
absence will not preclude continuation of the proceedings. Since there
are several procedural steps, such as service of charges, which, while associated
with the trial process, do not involve a session, the arraignment is a more
appropriate point of reference. This is consistent with the previous military
rule.
The discussion points out that, although not explicitly
stated in this subsection (or Fed. R. Crim. P. 43(b)), the accused may expressly
waive the right to be present at trial. Federal courts have so construed
Rule 43. See 8 J. Moore, _Moore's Federal Practice
_, § 43.02[2] (1982 rev. ed.):
[Rule
43] does not refer to express waiver of presence on the part of
felony defendants, although it includes such a provision for misdemeanants.
This omission was not intended to negate the right of felony defendants
expressly to waive presence at the trial, for the Diaz case
(Diaz v. United States, 223 U.S. 442 (1912)) cited as authority
for the "voluntary absence" provision itself involved an express
waiver. [Footnote omitted.]
_See also
Snyder v. Massachusetts_, 291 U.S. 97, 106 (1934) (dicta); _
In re United States_, 597 F.2d 27 (2d Cir. 1979); _United
States v. Jones_, 514 F.2d 1331 (D.C. Cir. 1975); _United
States v. Crutcher_, 405 F.2d 239 (2d Cir. 1968), _cert.
denied_, 394 U.S. 908 (1969); Pearson v. United States,
325 F.2d 625 (D.C. Cir. 1963); Cross v. United States, 325
F.2d 629 (D.C. Cir. 1963). Such waiver should be made expressly by the accused
in open court. _Compare Cross v. United States, supra, with Pearson
is no right to waive presence, _see, e.g., United States v. Durham
_, 587 F.2d 799 (5th Cir. 1979); _United States v. Fitzpatrick
_, 437 F.2d 19 (2d Cir. 1970). In_In re United States, supra
_, the court stated that there is a duty on the part of a defendant
in a felony trial to be present. 597 F.2d at 28.
Military cases
also recognize that an accused may expressly waive the right to be present, _
United States v. Blair_, 36 C.M.R. 750 (N.B.R. 1965), _rev'd
on other grounds_, 16 U.S.C.M.A. 257, 36 C.M.R. 413 (1966). _
See e.g., United States v. Holly_, 48 C.M.R. 990 (A.F.C.M.R. 1974). _
Cf. United States v. Cook_, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971).
Some earlier military cases indicated that accused's counsel could waive
the accused's right to be present. This is contrary to present authority. _
See United States v. Holly, supra._
Subsection (1) is
similar to paragraph 11 c of MCM, 1969 (Rev.). The language
in MCM, 1969 (Rev.), which indicated that an absence had to be unauthorized,
has been omitted. The language now conforms to the federal rule in this
respect. The term "unauthorized" has never been treated as significant. _
See United States v. Peebles_, 3 M.J. 177 (C.M.A. 1977). As the
discussion notes in the fourth paragraph, a person who is in custody or
otherwise subject to military control cannot, while in such a status, voluntarily
be absent from trial without expressly waiving the right on the record and
receiving the permission of the military judge to be absent. _Cf.
United States v. Crutcher, supra._ This appears to be the treatment
that the term "unauthorized" was designed to effect. _
See United States v. Peebles, supra_ at 179 (Cook, J.).
Trial
in absentia, when an accused voluntarily fails to appear at trial following
arraignment, has long been permitted in the military. _United States
of the discussion under Voluntary absence is found in _
United States v. Peebles, supra. United States v. Cook, supra_ requires
that the voluntariness of an absence be established on the record before
trial in absentia may proceed. Because the prosecution will be the party
moving for trial in absentia, the discussion notes that the prosecution has
the burden to prove voluntariness as well as absence. The example of an
inference is taken from Judge Perry's separate opinion in _United
States v. Peebles, supra. Compare United States v. Partlow_, 428
F.2d 814 (2d. Cir. 1970) with Phillips v. United States,
334 F.2d 589 (9th Cir. 1964), cert, denied, 379 U.S. 1002
(1965).
Subsection (2) is the same as Fed. R. Crim. P. 43(b)(2)
except for changes in terminology. The rule and much of the discussion are
based on Illinois v. Allen, 397 U.S. 337 (1970). The discussion
also draws heavily on _ABA Standards, Special Functions of the Trial
Judge_ § 6-3.8 and Commentary (1978). With respect
to binding an accused, see United States v. Gentile, 1
M.J. 69 (C.M.A. 1975). See also United States v. Henderson,
11 U.S.C.M.A. 556, 29 C.M.R. 372 (1960).
1999 Amendment: The amendment provides for two-way
closed circuit television to transmit a child's testimony from the courtroom
to the accused's location. The use of two-way closed circuit television,
to some degree, may defeat the purpose of these alternative procedures, which
is to avoid trauma to children. In such cases, the judge has discretion
to direct one-way television communication. The use of one-way closed circuit
television was approved by the Supreme Court in _Maryland v. Craig
_, 497 U.S. 836 (1990). This amendment also gives the accused the
election to absent himself from the courtroom to prevent remote testimony.
Such a provision gives the accused a greater role in determining how this
issue will be resolved.
2007 Amendment: The specific terminology of the manner in which remote live testimony may be transmitted was deleted to allow for technological advances in the methods used to transmit audio and visual information.
This subsection is similar to paragraph 60 of MCM, 1969 (Rev.).
In
subsection (1), the last sentence represents a modification of previous practice
by making the accused and defense counsel primarily responsible for the personal
appearance of the accused. Because of difficulties the defense may face
in meeting these responsibilities, the rule requires the commander to give
reasonable assistance to the defense when needed. The discussion emphasizes
the right (see United States v. West, 12 U.S.C.M.A. 670,
31 C.M.R. 256 (1962)) and the duty (_see United States v. Gentile,
supra_) of the accused to appear in proper military uniform.
Subsection
These rules are now found in the sections referred to by R.C.M. 804(c)(2).
Insofar as paragraph 60 of MCM, 1969 (Rev.) was a means of allocating responsibility
for maintaining (as opposed to authorizing) custody over an accused until
completion of trial, and insofar as this allocation is not mandated by other
rules in this Manual, the service secretaries are authorized to prescribe
rules to accomplish such allocation.
Subsection (3) is taken
verbatim from paragraph 60 of MCM, 1969 (Rev.).
This subsection is based on paragraph 39 d of MCM,
1969 (Rev.).
2007 Amendment: R.C.M. 805(a) was amended to implement the statutory change to 10 U.S.C. Sec 839 (Article 39, UCMJ) contained in Section 556 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. The amendment allows the presence of the military judge at an Article 39(a) session to be satisfied by the use of audiovisual technology, as prescribed by regulations of the Secretary concerned.
This subsection is based on paragraphs 41 c and
41 d(1) and (2) and the first sentence of the second paragraph
62 b of MCM, 1969 (Rev.) and on Article 29(c). _
See also United States v. Colon_, 6 M.J. 73 (C.M.A. 1978).
_
1986 Amendment:_ References to R.C.M. "911" were changed
to R.C.M. "912" to correct an error in MCM, 1984.
This subsection modifies paragraphs 44 c and 46
c which required the express permission of the convening
authority or the military judge for counsel to be absent. The rule now states
only the minimum requirement to proceed. The discussion noted that proceedings
ordinarily should not be conducted in the absence of any defense or assistant
defense counsel unless the accused consents. The second sentence in the
discussion is based on Ungar v. Sarafite, 376 U.S. 575 (1964); _
United States v. Morris_, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975); _
United States v. Kinard_, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); _
United States v. Hampton_, 50 C.M.R. 531 (N.C.M.R.), _pet.
denied_, 23 U.S.C.M.A. 663 (1975); _ United States v. Griffiths
_, 18 C.M.R. 354 (A.B.R.), pet. denied, 6 U.S.C.M.A.
808, 19 C.M.R. 413 (1955). _ See also Morris v. Slappy_, 461
U.S. 1 (1983); Dennis v. United States, 340 U.S. 887 (1950)
(statement of Frankfurter, J.); United States v. Batts, 3
M.J. 440 (C.M.A. 1977); 17 AM. Jur. 2d §§ 34-37 (1964).
2007 Amendment: R.C.M. 805(c) was amended to implement the statutory change to 10 U.S.C. Sec. 839 (Article 39, UCMJ) contained in section 556 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. The amendment allows the presence of counsel at an Article 39(a) session to be satisfied by the use of audiovisual technology, as prescribed by Regulations of the Secretary concerned.
This subsection is based on Article 29(b), (c), and (d) and on
paragraphs 39 e and 41 e and _f
_ of MCM, 1969 (Rev.). MCM, 1969 (Rev.) also provided a similar procedure
when a member of a court-martial was temporarily excused from the trial.
This rule does not authorize such a procedure. If a member must be temporarily
absent, a continuance should be granted or the member should be permanently
excused and the trial proceed as long as a quorum remains. Trial may not
proceed with less than a quorum present in any event. This subsection provides
a means to proceed with a case in the rare circumstance in which a court-martial
is reduced below a quorum after trial on the merits has begun and a mistrial
is inappropriate.
2012 Amendment. This subsection provides a means to proceed with a case in the rare circumstance in which a court-martial is reduced below a quorum after trial on the merits has begun and a mistrial is inappropriate. However, proceeding under these circumstances may result in a violation of the accused's constitutional rights to due process. See United States v. Vazquez, M.J. (A.F. Ct. Crim. App. 2012).
Introduction. This rule recognizes and codifies
the basic principle that, with limited exceptions, court-martial proceedings
will be open to the public. The thrust of the rule is similar to paragraph
53 e of MCM, 1969 (Rev.), but the right to a public trial
is more clearly expressed, and exceptions to it are more specifically and
more narrowly drawn. This construction is necessary in light of recent decisions,
particularly United States v. Grunden, 2 M.J. 116 (C.M.A.
1977).
This subsection reflects the holding in _United States v.
Grunden, supra_, that the accused has a right to a public trial
under the Sixth Amendment. See also United States v. Brown,
7 U.S.C.M.A. 251, 22 C.M.R. 41 (1956); _United States v. Zimmerman
_, 19 C.M.R. 806 (A.F.B.R. 1955).
Although the Sixth Amendment
right to a public trial is personal to the accused (_see Gannett
Co., Inc. v. DePasquale_, 443 U.S. 368 (1979)), the public has a
right under the First Amendment to attend criminal trials. _Richmond
Newspapers, Inc. v. Virginia_, 448 U.S. 555 (1980). The applicability
of these cases to courts-martial is not certain (_cf. Greer v. Spock
_, 424 U.S. 828 (1976); In re Oliver, 333 U.S. 257,
26 n. 12 (1948); but see United States v. Czarnecki, 10
M.J. 570 (A.F.C.M.R. 1980) (dicta)), especially in view of the practical
differences between civilian courts and courts-martial (i.e., courts-martial
do not necessarily sit at a permanent or fixed site; they may sit overseas
or at sea; and at remote or dangerous locations). Nevertheless the rule and
the discussion are based on recognition of the value to the public of normally
having courts-martial open to the public. This is particularly true since
the public includes members of the military community.
Neither the accused nor the public has an absolute right to a public
trial. This subsection recognizes the power of a military judge to regulate
attendance at courts-martial to strike a balance between the requirement
for a public trial and other important interests.
As the discussion
notes, the right to public trial may be violated by less than total exclusion
of the public. See United States v. Brown, supra. Whether
exclusion of a segment of the public is proper depends on a number of factors
including the breadth of the exclusion, the reasons for it, and the interest
of the accused, as well as the spectators involved, in the presence of the
excluded individuals. _See United States ex rel. Latimore v. Sielaff
_, 561 F.2d 691 (7th Cir. 1977), cert, denied, 434
U.S. 1076 (1978); United States ex rel. Lloyd v. Vincent,
520 F.2d 1272 (2d Cir.), cert. denied, 423 U.S. 937 (1975). _
See also Stamicarbon v. American Cyanamid Co._, 506 F.2d 532 (2d
Cir. 1974).
The third paragraph in the discussion of Rule 805(b)
is based on United States v. Grunden, supra.
Judicial
authority to regulate access to the courtroom to prevent overcrowding or
other disturbances is clearly established and does not conflict with the
right to a public trial. _See Richmond Newspapers, Inc. v. Virginia,
supra_ at 581 n. 18. Cf. Illinois v. Allen, 397
U.S. 337 (1970). In addition, there is substantial authority to support
the example in the discussion concerning restricting access to protect certain
witnesses. See, e.g., United States v. Eisner, 533 F.2d
987 (6th Cir.), cert. denied, 429 U.S. 919 (1976) (proper
to exclude all spectators except press to avoid embarrassment of extremely
timid witness); United States ex rel. Orlando v. Fay, 350
F.2d 967 (2d Cir. 1965), cert. denied, 384 U.S. 1008 (1966)
(proper to exclude all spectators except press and bar to avoid intimidation
of witnesses); United States ex rel. Latimore v. Sielaff, supra (proper
to exclude all spectators except press, clergy, and others with specific
interest in presence during testimony of alleged rape victim); _United
States ex rel. Lloyd v. Vincent, supra_ (proper to exclude spectators
in order to preserve confidentiality of undercover agents' identity). _
See also Gannett Co., Inc. v. DePasquale, supra_ at 401-500
(Powell J., concurring); _United States v. Brown, supra; United States
Subsection
only when otherwise authorized in this Manual. Effectively, this means that
the only time trial proceedings may be closed without the consent of the
accused is when classified information is to be introduced. _See
_ Mil. R. Evid. 505(j). Article 39(a) sessions may also be closed
under Mil. R. Evid. 505(i); 506(i); and 412(c). Some federal cases seem
to suggest that criminal proceedings may be closed for other purposes. _
See, e.g., United States ex rel. Lloyd v. Vincent, supra._ Selective
exclusion of certain individuals or groups for good cause, under the first
clause of this subsection, is a more appropriate and less constitutionally
questionable method for dealing with the problems treated in such cases.
Court-martial
proceedings may be closed when the accused does not object. As noted in the
discussion, however, such closure should not automatically be granted merely
because the defense requests or acquiesces in it. _See Richmond Newspapers,
Inc., v. Virginia, supra. See also Gannett Co., Inc. v. DePasquale, supra.
_
With respect to methods of dealing with the effect of
publicity on criminal trials, as treated in the discussion, _see
Nebraska Press Association v. Stuart_, 427 U.S. 539 (1976); _
Sheppard v. Maxwell_, 384 U.S. 333 (1966); _Rideau v. Louisiana
_, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S.
717 (1961); United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.), _
aff'd,_ 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973); _Caley v.
Callaway_, 519 F.2d 184 (5th Cir. 1975), cert. denied,
425 U.S. 911 (1976). _ See also ABA Standards, Fair Trial and Free
Press_ part III (1972).
_ 2004 Amendment:_ Subsection
and closure and to clarify that exclusion of specific individuals is not a
closure. The rules for control of spectators now in subsection (b)(1) were
amended to require the military judge to articulate certain findings on the
record prior to excluding specific spectators. _See United States
(b)(2) and the Discussion were amended in light of military case law that
has applied the Supreme Court's constitutional test for closure to courts-martial.
See ABC, Inc. v. Powell, 47 M.J. 363 (1997); _United
States v. Hershey, _20 M.J. 433 (C.M.A. 1985); _United States
2015 Amendment: R.C.M. 806(b)(2) was revised to implement Article 6b(a)(2), Article 6b(a)(3), and Article 6b(a)(5), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.
This subsection is based on Fed. R. Crim. P. 53, and is consistent
with paragraph 53 e of MCM, 1969 (Rev.) and practice thereunder. _
See_ C. Wright, _Wright's Federal Practice and Procedure
_ § 861 (1969); 8 B J. Moore, _
Moore's Federal Practice_ Para. 53.02 (1982 rev. ed.). The
exception which authorizes contemporaneous transmission of the proceedings
to another room (e.g., by closed circuit television) has been added to the
language of the federal rule. Many military courtrooms have limited space,
and such methods have been used to accommodate the accused's and the public's
interest in attendance at courts-martial, as in the case of _United
States v. Garwood_, NMC 81-1982 (1981). The Working Group
considered the constitutional alternatives identified in _Chandler
requires adherence to the federal rule except to the extent described. As
to the matters in the discussion, see Amsler v. United States,
381 F.2d 37 (9th Cir. 1967).
2002 Amendment: Section
trial participants' extrajudicial statements in appropriate cases. _
See United States v. Garwood_, 16 M.J. 863, 868 (N.M.C.M.R. 1983)
(finding military judge was justified in issuing restrictive order prohibiting
extrajudicial statements by trial participants), _ aff'd on other grounds
_, 20 M.J. 148 (C.M.A. 1985), cert. denied, 474
U.S. 1005 (1985); United States v. Clark, 31 M.J. 721,
724 (A.F.C.M.R. 1990) (suggesting, but not deciding, that the military judge
properly limited trial participants' extrajudicial statements).
The
public has a legitimate interest in the conduct of military justice proceedings.
Informing the public about the operations of the criminal justice system
is one of the "core purposes" of the First Amendment. In the
appropriate case where the military judge is considering issuing a protective
order, absent exigent circumstances, the military judge must conduct a hearing
prior to issuing such an order. Prior to such a hearing the parties will
have been provided notice. At the hearing, all parties will be provided
an opportunity to be heard. The opportunity to be heard may be extended to
representatives of the media in the appropriate case.
Section
Proceedings in Criminal Cases, included in the Revised Report of the Judicial
Conference Committee on the Operation of the Jury System on the "Free
Press--Fair Trial" Issue, 87 F.R.D. 519, 529 (1980), which was approved
by the Judicial Conference of the United States on September 25, 1980. The
requirement that the protective order be issued in writing is based on Rule
for Courts-Martial 405(g)(6). Section (d) adopts a "substantial likelihood
of material prejudice" standard in place of the Judicial Conference
recommendation of a "likely to interfere" standard. The Judicial
Conference's recommendation was issued before the Supreme Court's decision
in Gentile v. State Bar of Nev., 501 U.S. 1030 (1991). _
Gentile_, which dealt with a Rule of Professional Conduct governing
extrajudicial statements, indicates that a lawyer may be disciplined for
making statements that present a substantial likelihood of material prejudice
to an accused's right to a fair trial. While the use of protective orders
is distinguishable from limitations imposed by a bar's ethics rule, the _
Gentile_ decision expressly recognized that the "speech of
lawyers representing clients in pending cases may be regulated under a less
demanding standard than that established for regulation of the press in _
Nebraska Press Ass'n v. Stuart_, 427 U.S. 539 (1976), and the cases
which preceded it." 501 U.S. at 1074. The Court concluded that "the
substantial likelihood of material prejudice' standard constitutes
a constitutionally permissible balance between the First Amendment rights
of attorneys in pending cases and the State's interest in fair trials."
Id. at 1075. Gentile also supports the
constitutionality of restricting communications of non-lawyer participants
in a court case. Id. at 1072-73 (_citing Seattle
Times Co. v. Rhinehart_, 467 U.S. 20, 32-33 (1984)). Accordingly,
a protective order issued under the "substantial likelihood of material
prejudice" standard is constitutionally permissible.
The
first sentence of the discussion is based on the committee comment to the
Recommendations Relating to the Conduct of Judicial Proceedings in Criminal
Cases. See 87 F.R.D. at 530. For a definition of "party," _
see_ R.C.M. 103(16). The second sentence of the discussion is based
on the first of the Judicial Conference's recommendations concerning special
orders. See 87 F.R.D. at 529. The third sentence of the
discussion is based on the second of the Judicial Conference's recommendations,
id. at 532, and on United States v. Salameh,
992 F.2d 445, 447 (2d Cir. 1993) (per curiam), and _
In re Application of Dow Jones & Co._, 842 F.2d 603, 611 &
n.1 (2d Cir.), cert. denied, 488 U.S. 946 (1988). The fourth
sentence is based on _ Salameh_, 992 F.2d at 447. The fifth
sentence is based on Rule for Courts-Martial 905(d).
This rule and the discussion are taken from paragraph 112 _
a_ of MCM, 1969 (Rev.). See also Fed. R. Crim. P.
54(c).
Subsection (1) including the discussion is based on Article 42 and
is based on paragraph 112 b and c of MCM,
1969 (Rev.). Subsection (2) is taken from paragraph 112 d of
MCM, 1969 (Rev.). The discussion is taken in part from paragraph 112 _
d_ and in part from paragraph 114 of MCM, 1969 (Rev.). The oath
for questioning members has been combined with the oath concerning performance
of duties for administrative convenience and to impress upon the members
the significance of voir dire. The reference in paragraph 112 _a
_ of MCM, 1969 (Rev.), to Article 135 has been deleted. The oaths
for preferral of charges, and witnesses at Article 32 investigations and
depositions are contained in the discussion of applicable rules.
The primary purpose of this rule is to highlight for participants
at the trial stage the requirements for the record of trial. The discussion
is based on paragraph 82 a, b, and h,
of MCM, 1969 (Rev.). See also United States v. Eichenlaub,
11 M.J. 239 (C.M.A. 1981); United States v. McCullah, 11
M.J. 234 (C.M.A. 1981); United States v. Boxdale, 22 U.S.C.M.A.
414, 47 C.M.R. 351 (1973); United States v. Bielecki, 21
U.S.C.M.A. 450, 45 C.M.R. 224 (1972); United States v. DeWayne,
7 M.J. 755 (A.C.M.R.), pet. denied, 8 M.J. 25 (1979); _
United States v. Hensley_, 7 M.J. 740 (A.F.C.M.R.), _pet.
denied_, 8 M.J. 42 (1979); United States v. Pearson,
6 M.J. 953 (A.C.M.R.), pet. denied, 7 M.J. 164 (1979).
The preparation, authentication, and disposition of records of trial are covered
in Chapter XI. The administrative responsibility of trial counsel to prepare
the record is codal. Article 38(a). See also R.C.M. 1103(b).
This subsection restates codal authority. The discussion is based
on paragraph 118 a of MCM 1969 (Rev.). The language of
Article 48 applies only to "direct" contempts. _See
_ W. Winthrop, Military Law and Precedents 301-302
(2d ed. 1920 reprint); paragraph 101 of MCM, 1928; paragraph 109 of MCM
(Army), 1949; paragraph 118 a of MCM, 1951; paragraph
118 a of MCM, 1969 (Rev.). The definition of a "direct"
contempt is also based on these sources. See also 8B J.
Moore, Moore's Federal Practice Para. 42.02[3]
(1982 rev. ed); 18 U.S. § 401; cf. Ex parte Savin,
131 U.S. 267, witnessed by the court and other direct contempts is based
on Cooke v. United States, 267 U.S. 517 (1925), and is
important for procedural purposes. _ See_ subsection (b) below.
The subsection is based on Fed. R. Crim. P. 42. By its terms, Article
48 makes punishable contemptuous behavior which, while not directly witnessed
by the court-martial, disturbs its proceedings (e.g., a disturbance in the
waiting room). As Fed. R. Crim. P. 42(b) recognizes, this type of contempt
may not be punished summarily. See Johnson v. Mississippi,
403 U.S. 212 (1971); Cooke v. United States, supra. Paragraph
118 of MCM, 1969 (Rev.) did not adequately distinguish these types of contempt.
There may be technical and practical problems associated with proceeding
under subsection (b)(2) but the power to do so appears to exist under Article
This subsection prescribes different procedures for punishment for
contempt when members are or are not present. The Working Group examined
the possibility of vesting contempt power solely in the military judge;
but Article 48 provides that "court[s]-martial"
may punish for contempt. When members are present, the military judge is
not the court-martial. See Article 16. When trial by military
judge alone is requested and approved, the military judge is the court-martial.
Under Article 39(a) the military judge may "call the court into
session without the presence of the members," and the military judge
therefore acts as the court-martial within the meaning of Article 16 and
in the presence of the court-martial (_see Hearings of H. R. 2498
Before a Subcomm. of the House Comm. on Armed Services_, 81st Cong.,
1st Sess. 1060 (1949)), its purpose would be destroyed by requiring members
who were not present and did not observe the behavior to decide the matter.
The second sentence in subsection (c)(1) parallels Fed. R. Crim. P. 42(a).
The
procedure for contempt proceedings before members has been simplified to
the extent possible consistent with the requirement for the members to decide
the issue. The procedure for a preliminary ruling by the military judge
to decide as a matter of law that no contempt has occurred is expressly recognized
for the first time. See Article 51(b). The requirement for
a two-thirds vote on findings and punishment is based on Article 52(a) and
(b)(3).
This subsection is based on the eighth paragraph of paragraph 118
b of MCM, 1969 (Rev.) concerning the record and post-trial
action. The requirement for approval and execution of the sentence by the
convening authority is based on previous practice. See W.
Winthrop, supra at 301-312; paragraph 101 of MCM,
1928, paragraph 109 of MCM (Army) and MCM (AF), 1949, paragraph 118 of MCM,
1951; paragraph 118 b of MCM, 1969 (Rev.). This requirement
also reflects the need of the command to control its assets. The last sentence
is also based on _Hearings on H. R. 2498 Before a Subcomm. of the
House Comm. on Armed Services_, 81st Cong., 1st Sess. 1060 (1949).
This subsection is based on Article 57 and paragraph 118 _
b_ of MCM, 1969 (Rev.). It clarifies that the military judge may
delay announcement of a sentence to permit participation of the contemnor
when necessary. Paragraph 118 b of MCM, 1969 (Rev.) was
ambiguous in this regard.
This subsection and the discussion are based on paragraph 118 _
b_ of MCM, 1969 (Rev.); it has been modified for clarity.
_
1998 Amendment_: R.C.M. 809 was amended to modernize military contempt
procedures, as recommended in United States v. Burnett,
27 M.J. 99, 106 (C.M.A. 1988). Thus, the amendment simplifies the contempt
procedure in trials by courts-martial by vesting contempt power in the military
judge and eliminating the members' involvement in the process. The amendment
also provides that the court-martial proceedings need not be suspended while
the contempt proceedings are conducted. The proceedings will be conducted
by the military judge in all cases, outside of the members' presence. The
military judge also exercises discretion as to the timing of the proceedings
and, therefore, may assure that the court-martial is not otherwise unnecessarily
disrupted or the accused prejudiced by the contempt proceedings. See _
Sacher v. United States_, 343 U.S. 1, 10, 72 S. Ct. 451, 455, 96
L. Ed. 717, 724 (1952). The amendment also brings court-martial contempt
procedures into line with the procedure applicable in other courts.
Introduction. This rule is based on Articles
63 and 73. It concerns only the procedures for rehearings, new trials, and
other trials. Matters relating to ordering rehearings or new trials are
covered in R.C.M. 1107 and 1210.
This subsection is based on paragraph 81 b of MCM,
1969 (Rev.).
This subsection is based on Article 63(b) and the seventh paragraph
of paragraph 92 a of MCM, 1969 (Rev.). As to subsection
(3), see also United States v. Staten, 21 U.S.C.M.A. 493,
45 C.M.R. 267 (1972).
This subsection is based on paragraph 81 c of MCM,
1969 (Rev.).
Subsection (1) is based on the second sentence of Article 63 and
its legislative history. See H. R. Rep. No. 491, 81st Cong.,
1st Sess. 30 (1949) and paragraph 81 _ d_ of MCM, 1969 (Rev.). _
See also United States v. Ball_, 163 U.S. 662 (1896); _ United
States v. Culver_, 22 U.S.C.M.A. 141, 46 C.M.R. 141 (1973); _
United States v. Eschmann_, 11 U.S.C.M.A. 64, 28 C.M.R. 288 (1959); _
United States v. Jones_, 10 U.S.C.M.A. 532, 28 C.M.R. 98 (1959); _
United States v. Dean_, 7 U.S.C.M.A. 721, 23 C.M.R. 185 (1957).
The provision (prohibiting advising members of the basis of the sentence
limitation) in the third paragraph of paragraph 81 _ d_(1)
of MCM, 1969 (Rev.) has been placed, in precatory language, in the discussion.
The prohibition was based on _United States v. Eschmann, supra. Analysis
of Contents, Manual for Courts-Martial, United States, 1969, Revised edition
, DA PAM 27-2 at 15-2 (1970). The rationale of
Eschmann_ is subject to reasonable challenge. _See United
States v. Gutierrez_, 11 M.J. 122, 125 n.3 (C.M.A. 1981) (Everett,
C. J., concurring in the result); _United States v. Eschmann, supra
_ at 67, 28 C.M.R. at 291 (Latimer, J., concurring in the result).
By placing an admonition against such instructions in the discussion, rather
than a prohibition in the rule, users are alerted to current decisional requirements
while the issue is left open to future judicial development.
_
1995 Amendment_: Subsection (d) was amended in light of the change
to Article 63 effected by the National Defense Authorization Act for Fiscal
Year 1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992). The
amendment reflects that subsection (d) sentencing limitations only affect
the sentence that may be approved by the convening or higher authority following
the rehearing, new trial, or other trial. Subsection (d) does not limit
the maximum sentence that may be adjudged at the rehearing, new trial, or
other trial.
Subsection (2) is based on the last sentence of Article
63, as amended, Military Justice Act of 1983, Pub. L. No. 98-209,
§ 5(d)(2)(C), 97 Stat. 1393 (1983).
This definition is taken from paragraph 81 d(2)
of MCM, 1969 (Rev.). See also paragraph 92 b of
MCM, 1969 (Rev.).
This subsection restates the first sentence of paragraph 54 _
f_(1) of MCM, 1969 (Rev.).
This subsection makes clear that a stipulation can be received only
with the consent of the parties. This consent must be manifested in some
manner before the military judge may receive the stipulation, although the
rule does not specify any particular form for the manifestation, as this
rests within the discretion of the trial judge. _United States v.
Cambridge, supra._ Although it is normally preferable to obtain
it, the express consent of the accused on the record is not always necessary
for admission of a stipulation. In the absence of circumstances indicating
lack of consent by the accused (_see e.g., United States v. Williams
_, 30 C.M.R. 650 (N.B.R. 1960)), the defense counsel's concurrence
in the stipulation will bind the accused. _United States v. Cambridge,
supra._ If there is any doubt, the accused should be personally
questioned. See United States v. Barbeau, 9 M.J. 569 (A.F.C.M.R.
1980).
The last three paragraphs of the discussion deal with
stipulation "which practically amount to a confession." Paragraph
54 f(1) of MCM, 1969 (Rev.), states that such a confession
"should not be received in evidence." Despite this admonition,
such stipulations were occasionally received in order to allow the defense
to avoid waiving certain issues by pleading guilty while saving the parties
the time and expense of a full trial when the accused's guilt, as a practical
if not legal matter, was conceded. _See, e.g., United States v. Rempe
_, 49 C.M.R. 367 (A.F.C.M.R. 1974). The Court of Military Appeals
has approved this procedure, but only if an inquiry of the sort described
in the discussion is conducted. United States v. Bertelson,
3 M.J. 314 (C.M.A. 1977). The definition of a stipulation which practically
amounts to a confession in the discussion is based on Bertelson,
along with United States v. Schaffer, 12 M.J. 425, 427-428
nn. 4.6 (C.M.A. 1982); United States v. Reagan, 7 M.J.
490 (C.M.A. 1979); United States v. Aiello, 7 M.J. 99 (C.M.A.
1979); and United States v. Long, 3 M.J. 400 (C.M.A. 1977).
These cases indicate that a stipulation practically amounts to a confession
when it amounts to a "de facto" plea of guilty,
rather than simply one which makes out a prima facie case.
The example in the discussion is taken from _United States v. Long,
supra._
This subsection is taken, substantially verbatim, from paragraph
54 f(1) of MCM, 1969 (Rev.), and restates current law. _
See also United States v. Daniels_, 11 U.S.C.M.A. 52, 28 C.M.R. 276
(1959).
This subsection modifies previous Manual rules in two respects.
First, it states that a stipulation of fact is binding on the court-martial.
This is consistent with federal practice, _see e.g., Jackson v. United
States_, 330 F.2d 679 (8th Cir.), cert. denied. 379
U.S. 855 (1964), as well as the prevailing view in the vast majority of
states. See 4 J. Wigmore, Wigmore on Evidence § 2590
(3d ed. 1940); 73 Am. Jur. 2d. Stipulations, § 8
(1974); 83 C.J.S. Stipulations, §§ 12-13 (1953). _
See also H. Hackfield & Co. v. United States_, 197 U.S. 442
(1905). Paragraph 154 b of MCM, 1951, contained the following
provision: "The court is not bound by a stipulation even if received.
For instance its own inquiry may convince the court that the stipulated
fact is not true." The provision was drawn verbatim from paragraph
140 b of MCM (Army), 1949, and of MCM(AF), 1949, and can
be traced to paragraph 126 b of MCM, 1928. The Court of
Military Appeals questioned the validity of this provision in _United
States v. Gerlach_, 16 U.S.C.M.A. 383, 37 C.M.R. 3 (1966), but did
not have to resolve whether the court-martial was bound by a stipulation
of fact, since it held that the parties were. The above quoted language was
omitted from MCM, 1969 (Rev.). The analysis to the Manual does not explain
why. _See Analysis of Contents, Manual for Courts-Martial, 1969,
Revised Edition_, DA PAM 27-2 at 27-49 (1970). Despite
this omission, some courts-martial have apparently continued to apply the
earlier rule. _ See Military Criminal Law, Evidence_ DA PAM
27-22, AFP 111-8 at paragraph 6-2 (1975). There is no reason
not to follow federal practice on this matter. If the court-martial's "own
inquiry" indicates that the stipulated facts may not be true, the
parties should be afforded the opportunity to withdraw from the stipulation
and to present evidence on the matter in question.
The second
change is in the treatment of stipulations of a document's contents. MCM,
1969 (Rev.), applied the same "observations" it made concerning
stipulations of facts to stipulations of documents' contents thus implying
that, by stipulating to a documents' contents, the parties agreed that
the contents are true. This may have been due to the treatment of admissions
concerning documents' contents as a matter of civil procedure in Federal
courts, see Fed. R. Civ. P. 36 (1948) (since replaced by
Fed. R. Civ. P. 36 (1970)); see also Wigmore, supra, § 2596,
and the fact that stipulations of a documents' contents, like stipulations
of fact, are handed to the members of the court. Yet, it is clear that
the parties may stipulate that a document contains certain text or other
information, or that a given document is genuine, without necessarily agreeing
that the text or other information in the document is true. In this sense,
a stipulation as to a document's contents is like a stipulation of expected
testimony, and the rule so treats it.
Otherwise, this subsection
essentially restates paragraph 54 f(1) and (2) of MCM, 1969
(Rev.). See also United States v. Bennett, 18 U.S.C.M.A.
96, 39 C.M.R. 96 (1969) and United States v. Gerlach, supra for
further discussion of the effects of stipulations. If the parties fail to
object to inadmissible matters in a stipulation, this will normally constitute
a waiver of such objection. Mil. R. Evid. 103. _Cf. United States
also Wigmore, supra_ at § 2592.
This subsection is based on the second paragraph in paragraph 54
f(2) of MCM, 1969 (Rev.).
This rule is taken from paragraph 53 c of
MCM, 1969 (Rev.). The rule itself substantially repeats the first sentence
in paragraph 53 c. The discussion refers to other rules
dealing with joint or common trials, and includes the examples discussed
in paragraph 53 c of MCM, 1969 (Rev.). It also incorporates
a statement on stipulations which appeared at paragraph 54 f(3)
of MCM, 1969 (Rev.), and a statement concerning severances from paragraph
61 h of MCM, 1969 (Rev.). The rule does not change current
law.
This rule is based on paragraph 61 c of MCM,
1969 (Rev.) and is placed in Chapter 8 since the requirement for announcing
the presence or absence of parties usually recurs several times during the
trial. The rule has been rephrased to acknowledge the responsibility of the
military judge to ensure that the matters covered are reflected in the record.
Paragraph 61 c of MCM, 1969 (Rev.) required the trial counsel
to make these announcements. This rule leaves to the discretion of the military
judge who will make the announcements. The importance of requiring such
announcements to be made on the record is emphasized in _United States
Introduction. R.C.M. 901 through 903 set
out in chronological order the procedures to be followed before arraignment.
The order need not be followed rigidly.
This subsection is based on the first sentence in paragraph 61 _
b_ of MCM, 1969 (Rev.). The purpose of the subsection is to establish
a definite point to indicate when a court-martial is in session. The first
paragraph in the discussion is taken from paragraph 61 _ a_ of
MCM, 1969 (Rev.), but the present provision has been expanded to include
comparing the record of the referral on the charge sheet with the convening
orders to ensure that they are consistent. The other matters in paragraphs
61 a and b of MCM, 1969 (Rev.), are omitted
here as unnecessary.
The second paragraph in the discussion is
based on paragraph 58 c of MCM, 1969 (Rev.) and serves
as a reminder of the Article 35 requirements. _See United States v.
Pergande_, 49 C.M.R. 28 (A.C.M.R. 1974). The failure to object is
normally a waiver of the statutory right. _United States v. Lumbus
_, 48 C.M.R. 613 (A.C.M.R. 1974). Because of the importance of the
right, however, the military judge should secure an affirmative waiver. _
See United States v. Perna_, 1 U.S.C.M.A. 438, 4 C.M.R. 30 (1952); _
United States v. Pergande, supra._
This subsection is based on paragraph 61 c of MCM,
1969 (Rev.). Requiring an announcement is intended to guard against inadvertently
proceeding in the absence of necessary personnel and to ensure that the
record reflects the presence of required personnel. Failure to make the announcement
is not error if it otherwise appears that no essential personnel were absent.
This subsection and its discussion are taken directly from paragraph
61 d of MCM, 1969 (Rev.).
This subsection, except for subsection (4)(A) and (D), is based
on paragraphs 61 e and f of MCM, 1969
(Rev.). The qualifications of counsel and matters which disqualify counsel
are treated at R.C.M. 502(d) and are not repeated here. The subsection makes
clear that at trial the military judge is responsible for determining whether
counsel is disqualified, Soriano v. Hosken, 9 M.J. 221
(C.M.A. 1980), and for seeing that appropriate action is taken. Of course,
if a detailed counsel is disqualified the responsibility will fall upon
the convening authority to rectify the problem. The discussion points out
that defects in the qualification of counsel are not jurisdictional. _
Wright v. United States_, 2 M.J. 9 (C.M.A. 1976). Subsection (4)(A)
has been added to conform to the requirements of _United States v.
Donohew_, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969). Cf. Fed.
R. Crim. P. 5(c). Subsection (4)(D) is based on Fed. R. Crim. P. 44(c) and _
United States v. Breese_, 11 M.J. 17 (C.M.A. 1981). _See
also United States v. Davis_, 3 M.J. 430 (C.M.A. 1977); _
United States v. Blakey_, 1 M.J. 247 (C.M.A. 1976); _United
States v. Evans_, 1 M.J. 206 (C.M.A. 1975).
This subsection is new. Its purpose is to eliminate unnecessary
attendance by members. Accord Article 39(a).
Introduction. This rule is based on 28 U.S.C.
§ 455, which is itself based on Canon III of the _ABA
Code of Judicial Conduct_, and on paragraph 62 of MCM, 1969 (Rev.).
The
procedures prescribed by 28 U.S.C. § 144 were not adopted. That
statute provides that whenever a party "files a timely and sufficient
affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein." This section does not establish
a different test from 28 U.S.C. § 455 for disqualification
for prejudice or bias. Instead, 28 U.S.C. § 144 provides a procedure
mechanism by which the disqualification determination may be made. _
United States v. Sibla_, 624 F.2d 864 (9th Cir. 1980); _
see also Parrish v. Board of Commissioners of Alabama State Bar_,
524 F.2d 98 (5th Cir. 1975) (en banc), _cert. denied
_, 425 U.S. 944 (1976).
This procedure is not practicable
for courts-martial because of the different structure of the military judiciary
and the limited number of military judges.
This subsection is, except for changes in terminology, identical
to 28 U.S.C. § 455(a). See also paragraph 62 _
f_(13) of MCM, 1969 (Rev.); United States v. Conley,
4 M.J. 327 (C.M.A. 1978); United States v. Head, 2 M.J.
131 (C.M.A. 1977).
The stem and subsection (1) are, with changes in terminology, identical
to the stem and subsection (1) of 28 U.S.C. § 455(b). _
See also_ paragraph 62 _ f_(13) of MCM, 1969 (Rev.).
Note that any interest or bias to be disqualifying must be personal, not
judicial, in nature. Berger v. United States, 255 U.S.
22 (1921); Azhocar v. United States, 581 F.2d 735 (9th
Cir. 1978), cert. denied, 440 U.S. 907 (1979); _
United States v. Lewis_, 6 M.J. 43 (C.M.A. 1978); _United
States v. Grance_, 2 M.J. 846 (A.C.M.R. 1976); _United States
States v. Lynch,_ 13 M.J. 394, 398, n. 3 (C.M.A. 1982) (Everett,
C.J. concurring).
Subsection (2) is based on paragraphs 62 _
f_(5), (6), and (11) of MCM, 1969 (Rev.). _See United States
to the disqualifying activities in 28 U.S.C. § 455(b)(2).
Subsection
is based on paragraphs 62 f(3), (4), (9), (10), and
of MCM, 1969 (Rev.). See also Mil. R. Evid. 605; _
United States v. Cooper_, 8 M.J. 5 (C.M.A 1979); _United States
is analogous to that of 28 U.S.C. § 455(b)(3).
Subsection
and 62 g of MCM, 1969 (Rev). The matters in 28 U.S.C. § 455(b)(4)
regarding financial interest in the proceedings are not of significance in
courts-martial. The remote possibility that a judge or a member of the family
might have a financial interest in the outcome of a court-martial is adequately
covered in subsection (5) of this rule.
Subsection (5) is taken
directly from 28 U.S.C. § 455(b)(5), with the added clarification
that the interest in subsection (C) may be financial or otherwise.
The
discussion is based on 28 U.S.C. § 455(c).
Subsections (1) and (2) are, with changes in terminology, identical
to 28 U.S.C. § 455(d)(1) and (2). Subsection (3) has been added
to clarify that the president of a special court-martial without a military
judge is treated as any other member for purposes of qualifications and
challenges. See R.C.M. 912. Subsection (3) of 28 U.S.C.
§ 455(d) is unnecessary.
This section including the discussion is based on Article 41 and
paragraph 62 d, g, and h of MCM, 1969
(Rev.).
This section is, with changes in terminology, identical to 28 U.S.C.
§ 455(e).
This subsection is based on Articles 16, 18, 19, and 25. It is
similar to paragraphs 53 d(2)(c) and 61 g and _
h_ of MCM, 1969 (Rev.) insofar as it concerns the timing of requests
for enlisted members of trial by military judge alone. It parallels Fed.
R. Crim. P. 23(a). Section (b) of Fed. R. Crim. P. 23 is inapplicable in
the military, and the matters covered in Fed. R. Crim. P. 23(c) are covered
in R.C.M. 918(b).
Article 25 states that a request for enlisted
members must be made before the end of an Article 39(a) session, if any.
The first Article 39(a) session is appropriate to consider these matters.
Although the Court of Military Appeals has not decided the issue (_
United States v. Morris_, 23 U.S.C.M.A. 319, 321, 49 C.M.R. 653,
655 n.2 (1975)), the Working Group concluded that this does not establish
a jurisdictional deadline. Cf. United States v. Bryant,
23 U.S.C.M.A. 326, 49 C.M.R. 660 (1975); _United States v. Morris,
supra_ (Article 16 requirement that request be submitted before
assembly is not jurisdictional). To permit greater flexibility, the military
judge is authorized to permit the defense to defer a request for enlisted
members until a later time. Such a request should be granted for good cause
only, bearing in mind the burden which it may impose on the Government.
A
request for trial by military judge alone should be made at the initial Article
39(a) session to simplify procedure and facilitate scheduling and preparation.
However, since Article 16 gives the accused a statutory right to wait until
assembly to request trial by military judge alone, subsection (2) allows
automatic deferral of this request.
The discussion points out
the statutory limits on requesting enlisted members or trial by military
judge alone. See Articles 16, 18, and 25.
This subsection is based on Articles 16 and 25. The amendment of
Article 16 permits a request for trial by military judge alone to be made
orally on the record. Military Justice Act of 1983, Pub. L. No. 98-209,
§ 3(a), 97 Stat. 1393 (1983).
This subsection is based on Articles 16 and 25. Subsection (2)(A)
is based on Article 16(1)(B) and on paragraph 53 d(2)(C)
of MCM, 1969 (Rev.). It does not require an inquiry of the accused by the
military judge, although, as the discussion points out, it is good practice
to do so, and failure to do so could be error if the record otherwise left
the accused's understanding of the rights in doubt. See S.
Rep. No. 53, 98th Cong., 1st Sess. 12 (1983); _United States v. Parkes
_, 5 M.J. 489 (C.M.A. 1978); United States v. Turner,
20 U.S.C.M.A. 167, 43 C.M.R. 7 (1970); _United States v. Jenkins
_, 20 U.S.C.M.A. 112, 42 C.M.R. 304 (1970). This is consistent with
prevailing federal civilian practice. _See, e.g., Estrada v. United
States_, 457 F.2d 255 (7th Cir.), cert. denied,
409 U.S. 858 (1972); United States v. Mitchell, 427 F.2d
1280 (3d Cir. 1970); United States v. Straite, 425 F.2d
594 (D.C. Cir. 1970); United States v. Hunt, 413 F.2d 983
(4th Cir. 1969); but see United States v. Scott, 583 F.2d
362 (7th Cir. 1978) (establishing requirement for personal inquiry into
jury waiver in Seventh Circuit). See generally 8AJ. Moore, _
Moore's Federal Practice_ Para. 23.03[2]
(1982 rev. ed.).
Subsection (2)(B) is based on Article 16(1)(B)
which makes trial by military judge alone contingent on approval by the
military judge. See United States v. Morris, supra at 324,
49 C.M.R. at 658. The discussion is based on _United States v. Butler
_, 14 M.J. 72 (C.M.A. 1982); United States v. Ward,
3 M.J. 365 (C.M.A. 1977); United States v. Bryant, supra.
_
1986 Amendment:_ Subsection (3) was amended to reflect clearly that
requests for trial by military judge alone need not be in writing.
Subsection (1) is based on United States v. Stipe,
23 U.S.C.M.A. 11, 48 C.M.R. 267 (1974).
Subsection (2) is based
on the fifth sentence of paragraph 39 e and on paragraph
53 d (2)(b) of MCM, 1969 (Rev.), and current practice.
This subsection is based on Articles 16 and 25, and _United
States v. Jeanbaptiste_, 5 M.J. 374 (C.M.A. 1978); _United
States v. Thorpe_, 5 M.J. 186 (C.M.A. 1978); _United States
Bryant, supra. See also United States v. Holmen_, 586 F.2d 322 (4th
Cir. 1978).
Despite dicta in_United States v. Bryant,
supra_ at 328, 49 C.M.R. at 662 n. 2, that withdrawal must be in
writing, the rule prescribes no format for withdrawal. Cf. Article
16(1)(B), as amended, see Military Justice Act of 1983,
Pub. L. No. 98-209, § 3(a), 97 Stat. 1393 (1983).
_
1987 Amendment:_ Subsections (b)(1), (c)(1) and (c)(3) were amended
to reflect an amendment to Article 25(c)(1) UCMJ, in the "Military
Justice Amendments of 1986," tit. VIII, § 803, National
Defense Authorization Act for fiscal year 1987, Pub. L. No. 99-661,
100 Stat. 3905 (1986). See Analysis R.C.M. 503.
This rule is based on Fed. R. Crim. P. 10 and paragraph 65
a of MCM, 1969 (Rev.). The second sentence of Fed. R. Crim.
P. 10 has been deleted as unnecessary since in military practice the accused
will have been served with charges before arraignment. Article 35; R.C.M.
Introduction. This rule is based generally
on Fed. R. Crim. P. 12 and 47 and paragraphs 66 and 67 of MCM, 1969 (Rev.).
Specific similarities and differences are discussed below.
The first sentence of this subsection is taken from the first sentence
of paragraph 66 b of MCM, 1969 (Rev.). It is consistent
with the first sentence of Fed. R. Crim. P. 47 and the second sentence of
Fed. R. Crim. P. 12(a). The second sentence is based on the second sentence
of paragraph 67 c of MCM, 1969 (Rev.), although to be consistent
with Federal practice (see Fed. R. Crim. P. 12(b) (second
sentence) and 47 (second sentence)) express authority for the military judge
to exercise discretion over the form of motions has been added. The third
sentence is based on the third sentence of Fed. R. Crim. P. 47 and is consistent
with the first sentence of paragraph 67 c and the fourth
sentence of paragraph 69 a of MCM, 1969 (Rev.). The last
sentence in this subsection is based on the third sentence of paragraph
67 c of MCM, 1969 (Rev.). Although no parallel provision
appears in the Federal Rules of Criminal Procedure, this standard is similar
to federal practice. See Marteney v. United States , 216
F.2d 760 (10th Cir. 1954); United States v. Rosenson, 291
F. Supp. 867 (E.D. La. 1968), affd, 417 F.2d 629 (5th
Cir. 1969); cert. denied, 397 U.S. 962 (1970). The last
sentence in Fed. R. Crim. P. 47, allowing a motion to be supported by affidavit,
is not included here. _ See_ subsection (h) of this rule and
Mil. R. Evid. 104(a). See generally Fed. R. Crim. P. 47 _
Notes Of Advisory Committee on Rules_ n. 3.
This subsection, except for subsection (6), is based on Fed. R.
Crim. P. 12(b). Subsections (1) and (2) have been modified to conform to
military practice and are consistent with the first two sentences of paragraph
67 b of MCM, 1969 (Rev.). Subsection (3) is consistent
with Mil. R. Evid. 304(d)(2)(A); 311(d)(2)(A); 321(c)(2)(A). The discussion
is based on paragraph 69A of MCM, 1969 (rev.). Subsection (4) is new. _
See_ R.C.M. 701; 703; 1001(e). Subsection (5) is also new. Subsection
of MCM, 1969 (Rev.) and_United States v. Redding_, 11 M.J.
100 (C.M.A. 1981).
This subsection is based on paragraphs 57 g(1)
and 67 e of MCM, 1969 (Rev.). The assignment of the burden
of persuasion to the moving party is a minor change from the language in
paragraph 67 e of MCM, 1969 (Rev.), which placed the burden
on the accused "generally." The effect is basically the same,
however, since the former rule probably was intended to apply to motions
made by the accused. See also United States v. Graham, 22
U.S.C.M.A. 75, 46 C.M.R. 75 (1972). The exceptions to this general rule
in subsection (B) are based on paragraphs 68 b (1), 68 _
c_, and 215 e of MCM, 1969 (Rev.). _See also
United States v. McCarthy_, 2 M.J. 26, 28 n. 1 (C.M.A. 1976); _
United States v. Graham, supra; United States v. Garcia_, 5 U.S.C.M.A.
88, 17 C.M.R. 88 (1954). The Federal Rules of Criminal Procedure are silent
on burdens of proof.
Fed. R. Crim. P. 12(c) is not adopted. This
is because in courts-martial, unlike civilian practice, arraignment does
not necessarily, or even ordinarily, occur early in the criminal process.
In courts-martial, arraignment usually occurs only a short time before trial
and in many cases it occurs the same day as trial. Because of this, requiring
a motions date after arraignment but before trial is not appropriate, at
least as a routine matter. Instead, entry of pleas operates, in the absence
of good cause, as the deadline for certain motions. A military judge could,
subject to subsections (d) and (e), schedule an Article 39(a) session (_
see_ R.C.M. 803) for the period after pleas are entered but before
trial to hear motions.
This subsection is based on Fed. R. Crim. P. 12(e). It is consistent
with the first sentence in paragraph 67 e of MCM, 1969
(Rev.). The admonition in the second sentence of that paragraph has been
deleted as unnecessary. The discussion is based on the third paragraph of
paragraph 67 f of MCM, 1969 (Rev.).
_
1991 Amendment:_ The discussion was amended to reflect the change
to R.C.M. 908(b)(4).
The first two sentences in the subsection are taken from Fed. R. Crim. P. 12(f) and are consistent with paragraph 67 b of
MCM, 1969 (Rev.). The third sentence is based on paragraph 67 a
of MCM, 1969 (Rev.). The Federal Rules of Criminal Procedure do not expressly
provide for waiver of motions other than those listed in Fed. R. Crim. P. 12(b). (But see 18 U.S.C. § 3162(a)(2) which
provides that failure by the accused to move for dismissal on grounds of
denial of speedy trial before trial or plea of guilty constitutes waiver
of the right to dismissal under that section.) Nevertheless, it has been
contended that because Fed. R. Crim. P. 12(b)(2) provides that lack of jurisdiction
or failure to allege an offense "shall be noticed by the court at
any time during the pendency of the proceedings," "it may,
by negative implications be interpreted as foreclosing the other defense
if not raised during the trial itself." 8A J. Moore, _Moore's
Federal Practice_ Para. 12.03[1] (1982
rev. ed.). "Pendency of the proceedings" has been held to include
the appellate process. See United States v. Thomas, 444
F.2d 919 (D.C. Cir. 1971). Fed. R. Crim. P. 34 tends to support this construction
insofar as it permits a posttrial motion in arrest of judgment only for lack
of jurisdiction over the offense or failure to charge an offense. There is
no reason why other motions should not be waived if not raised at trial. _
Moore's, supra_ at Para. 12.03[1]; _
accord_ C. Wright, Federal Practice and Procedure §193
(1969). See also United States v. Scott, 464 F.2d 832
(D.C. Cir. 1972); United States v. Friedland, 391 F.2d
378 (2d Cir. 1968), cert. denied, 404 U.S. 867 (1969). _
See generally United States ex rel. DiGiangiemo v. Regan_, 528
F.2d 1262 (2d Cir. 1975). Decisions of the United States Court of Military
Appeals are generally consistent with this approach. _See United States
may be waived); United States v. Schilling, 7 U.S.C.M.A.
482, 22 C.M.R. 272 (1957) (former jeopardy may be waived). _Contra
United States v. Johnson_, 2 M.J. 541 (A.C.M.R. 1976).
_
1990 Amendment:_ Subsection (e) was amended to clarify that "requests"
and "objections" include "motions".
This subsection is new and makes clear that the military judge may
reconsider rulings except as noted. The amendment of Article 62 (_
see_ Military Justice Act of 1983, Pub. L. No. 98-209, § 5(c),
97 Stat. 1393 (1983)), which deleted the requirement for reconsideration
when directed by the convening authority' does not preclude this. _
See_ S. Rep. No. 53, 98th Cong., 1st Sess. 24 (1983).
_
1994 Amendment:_ The amendment to R.C.M. 905(f) clarifies that the
military judge has the authority to take remedial action to correct any errors
that have prejudiced the rights of an accused. _United States v. Griffith
_, 27 M.J. 42, 47 (C.M.A. 1988). Such remedial action may be taken
at a pre-trial session, during trial, or at a post-trial Article 39(a) session.
See also United States v. Scaff, 29 M.J. 60, 65-66 (C.M.A.
1989). The amendment, consistent with R.C.M. 1102(d), clarifies that post-trial
reconsideration is permitted until the record of trial is authenticated.
The
amendment to the Discussion clarifies that the amendment to subsection (f)
does not change the standard to be used to determine the legal sufficiency
of evidence. R.C.M. 917(d); _see Griffith, supra; see also Scaff,
supra_.
Except as noted below, this subsection is based on paragraph 71
b of MCM, 1969 (Rev.) and on Ashe v. Swenson,
397 U.S. 436 (1970); Oppenheimer v. United States, 242 U.S.
85 (1916); United States v. Marks, 21 U.S.C.M.A. 281, 45
C.M.R. 55 (1972); Restatement of Judgements, Chapter 3
(1942). _ See also Commissioner of Internal Revenue v. Sunnen_,
333 U.S. 591 (1948); United States v. Moser, 266 U.S. 236
(1924); United States v. Washington, 7 M.J. 78 (C.M.A.
1979); United States v. Hart, 19 U.S.C.M.A. 438, 42 C.M.R.
40 (1970); United States v. Smith, 4 U.S.C.M.A. 369, 15
C.M.R. 369 (1954).
Subsection (g) differs from paragraph 71 _
b_ in two significant respects. First, the term, "res judicata"
is not used in R.C.M. 905(g) because the term is legalistic and potentially
confusing. "Res judicata" generally includes several distinct
but related concepts: merger, bar, direct estoppel, and collateral estoppel. _
Restatement of Judgments_, Chapter 3 Introductory Note at 160 (1942). _
But see_ 1B J. Moore, Moore's Federal Practice
Para. 0.441(1) (1980 rev. ed.) which distinguishes collateral estoppel
from res judicata generally. Second, unique aspects of the doctrine of collateral
estoppel are recognized in the "except" clause of the first sentence
in the rule. Earlier Manuals included the concept of collateral estoppel
within the general discussion of res judicata (see paragraph
72 b of MCM (Army), 1949; paragraph 71 _ b_ of
MCM, 1951, paragraph 71 b of MCM, 1969 (Rev.); _
see also United States v. Smith, supra_) without discussing its
distinguishing characteristics. Unlike other forms of res judicata, collateral
estoppel applies to determinations made in actions in which the causes of
action were different. 1B J. Moore, supra, Para. 0.441[1].
Because of this, its application is somewhat narrower. Specifically, parties
are not bound by determinations of law when the causes of action in the
two suits arose out of different transactions. _Restatement of Judgments,
supra_, §§ 68, 70. _ See also Commissioner v. Sunnen,
supra._ This distinction is now recognized in the rule.
The
absence of such a clarifying provision in earlier Manuals apparently caused
the majority, despite its misgivings and over the dissent of Judge Brosman,
to reach the result it did in United States v. Smith, supra.
When paragraph 71 b was rewritten in MCM, 1969 (Rev.), the
result in Smith was incorporated into that paragraph, but
neither the concerns of the Court of Military Appeals nor the distinguishing
characteristics of collateral estoppel were addressed. _ See Analysis
of Contents of the Manual for Courts-Martial, United States, 1969, Revised
Edition_, DA Pam 27-2 at 12-5 (July 1970). To the extent
that Smith relied on the Manual, its result is no longer
required. But see United States V Martin, 8 U.S.C.M.A. 346,
352, 24 C.M.R. 156, 162 (1957) (Quinn, C.J., joined by Ferguson, J. concurring
in the result).
The discussion is based on the sources indicated
above. See also Restatement of Judgments, supra § 49; _
United States v. Guzman_, 4 M.J. 115 (C.M.A. 1977). As to the effect
of pretrial determinations by a convening authority, see Analysis,
R.C.M. 306(a).
This subsection is based on Fed. R. Crim. P. 47.
This subsection is based on Fed. R. Crim. P. 49(a) and (b), insofar
as those provisions apply to motions.
This subsection is based on Fed. R. Crim. P. 12(i).
This subsection is based on the first sentence of paragraph 69 _
a_ of MCM, 1969 (Rev.). The phrase concerning deprivation of rights
is new; it applies to such pretrial matters as defects in the pretrial advice
and the legality of pretrial confinement. Paragraph 69 _ a_ of
MCM, 1969 (Rev.) provided only for the accused to make motions for appropriate
relief. This rule is not so restricted because the prosecution may also
request appropriate relief. See e.g., United States v. Nivens,
21 U.S.C.M.A. 420, 45 C.M.R. 194 (1972). This change is not intended to
modify or restrict the power of the convening authority or other officials
to direct that action be taken notwithstanding the fact that such action
might also be sought by the trial counsel by motion for appropriate relief
before the military judge. Specific modifications of the powers of such
officials are noted expressly in the rules or analysis.
This subsection has the same general purpose as paragraph 69 of
MCM, 1969 (Rev.). It identifies most of the grounds for motions for appropriate
relief commonly raised in courts-martial, and provides certain rules for
litigating and deciding such motions where these rules are not provided elsewhere
in the Manual. Specific sources for the rules and discussion are described
below.
2015 Amendment: R.C.M. 906(b)(8) was revised to implement Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.
Subsection (1) and the accompanying discussion are based
on Article 40 and paragraphs 58 b and c of
MCM, 1969 (Rev.). The rule provides that only a military judge may grant
a continuance. Paragraph 58 a of MCM, 1969 (Rev.) which
provided for "postponement" has been deleted. Reposing power
to postpone proceedings in the convening authority is inconsistent with the
authority of the military judge to schedule proceedings and control the docket. _
See generally United States v. Wolzok_, 1 M.J. 125 (C.M.A. 1975).
To the extent that paragraph 58 a extended to the military
judge the power to direct postponement, it was duplicative of the power to
grant a continuance and unnecessary.
Subsection (2) is based on paragraph 48 b(4) of MCM, 1969 (Rev.). See also United States v. Redding, 11 M.J. 100 (C.M.A. 1981).
Subsection (3) is based on paragraph 69 c of MCM, 1969 (Rev.). _
See also_ Articles 32(d) and 34; _United State v. Johnson
_, 7 M.J. 396 (C.M.A. 1979); _United States v. Donaldson
_, 23 U.S.C.M.A. 293, 49 C.M.R. 542 (1975); _United States
Subsection
See also_ Article 30(a); paragraphs 29e and 33 d of
MCM, 1969 (Rev.); Fed. R. Crim. P. 7(d). _See generally United States
States v. Krutsinger_, 15 U.S.C.M.A. 235, 35 C.M.R. 207 (1965); _
United States v. Johnson_, 12 U.S.C.M.A. 710, 31 C.M.R. 296 (1962).
Subsection
1969 (Rev.); United States v. Collins, 16 U.S.C.M.A. 167,
36 C.M.R. 323 (1966); United States v. Means, 12 U.S.C.M.A.
290, 30 C.M.R. 290 (1961); United States v. Parker, 3 U.S.C.M.A.
541, 13 C.M.R. 97 (1953); United States v. Voudren, 33
C.M.R. 722 (A.B.R. 1963). See also paragraphs 158 and 200 _
a_(8) of MCM, 1969 (Rev). _But see United States v. Davis
_, 16 U.S.C.M.A. 207, 36 C.M.R. 363 (1966) (thefts occurring at
different places and times over four-month period were separate).
Subsection
in the previous Manual, bills of particulars have been recognized in military
practice. See United States v. Alef, 3 M.J. 414 (C.M.A.
1977); United States v. Paulk, 13 U.S.C.M.A. 456, 32 C.M.R.
456 (1963); United States v. Calley, 46 C.M.R. 1131, 1170
(A.C.M.R.), aff'd, 22 U.S.C.M.A 534, 48 C.M.R. 19 (1973);
James, Pleadings and Practice under United States v. Alef,
20 A.F.L. Rev. 22 (1978); Dunn, Military Pleadings, 17 A.F.L.
Rev. 17 (Fall, 1975). The discussion is based on _United States V.
Mannino_, 480 F. Supp. 1182, 1185 (S.D. N.Y. 1979); _United
States v. Deaton_, 448 F. Supp. 532 (N.D. Ohio 1978); _see
also United States v. Harbin_, 601 F.2d 773, 779 (5th Cir. 1979); _
United States v. Giese_, 597 F.2d 1170, 1180 (9th Cir. 1979); _
United States v. Davis_, 582 F. 2d 947, 951 (5th Cir. 1978),_
cert. denied_, 441 U.S. 962 (1979). Concerning the contents of a
bill, see United States v. Diecidue, 603 F.2d 535, 563
(5th Cir. 1979); United States v. Murray, 527 F.2d 401,
411 (5th Cir. 1976); _United States v. Mannino, supra; United States
Subsection
MCM, 1969 (Rev.). See also Fed. R. Crim. P. 12(b)(4); _
United States v. Killebrew_, 9 M.J. 154 (C.M.A. 1980); _
United States v. Chuculate_, 5 M.J. 143 (C.M.A. 1978).
Subsection
_ Analysis, R.C.M. 305(j).
Subsection (9) is based on
paragraph 69 d of MCM, 1969 (Rev.) and Fed. R. Crim. P. 14 to the extent that the latter applies to severance of codefendants. Note
that the Government may also accomplish a severance by proper withdrawal
of charges against one or more codefendants and rereferrals of these charges
to another court-martial. See R.C.M. 604. The discussion
is based on paragraph 69 d of MCM, 1969 (Rev.).
Subsection
because of the general policy in the military favoring trial of all known
charges at a single court-martial. See R.C.M. 601(e) and
discussion; United States v. Keith, 1 U.S.C.M.A. 442, 4
C.M.R. 34 (1952). Motions to sever charges have, in effect, existed through
the policy in paragraph 26c of MCM, 1969 (Rev.), against joining minor and
major offenses. See, e.g., United States v. Grant, 26 C.M.R.
692 (A.B.R. 1958). Although that provision has been eliminated, severance
of offenses may still be appropriate in unusual cases. _See generally
United States v. Gettz_, 49 C.M.R. 79 (N.C.M.R. 1974).
Subsection
and on Fed. R. Crim. P. 21. _See United States v. Nivens, supra; United
States v. Gravitt_, 5 U.S.C.M.A. 249, 17 C.M.R. 249 (1954). The
constitutional requirement that the trial of a crime occur in the district
in which the crime was committed (U.S. Const. Art. II, sec. 2, cl. 3; amend
22 U.S.C.M.A. 183, 46 C.M.R. 183 (1973). Therefore Fed. R. Crim. P. 21(b)
is inapplicable. In recognition of this, and of the fact that the convening
authority has an interest, both financial and operational, in fixing the
place of the trial, the rule allows the situs of the trial to be set and
changed for the convenience of the Government, subject to judicial protection
of the accused's rights as they may be affected by that situs.
See United States v. Nivens, supra.
Subsection (12) is based on paragraph 76 a(5) of MCM, 1969 (Rev.).
See also Analysis, R.C.M. 907(b)(3)(B) and Analysis, R.C.M. 1003(c)(1)(C).
2015 Amendment. This rule and related discussion is the focal point for addressing unreasonable multiplication of charges. If a practitioner seeks to raise a claim for multiplicity, that concept is addressed in R.C.M. 907(b)(3)(B) and related discussion. This rule has been amended because CAAF has recognized that practitioners and the courts have routinely confused the concepts of multiplicity and unreasonable multiplication of charges. See, e.g., United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) ("the terms multiplicity, multiplicity for sentencing, and unreasonable multiplication of charges in military practice are sometimes used interchangeably as well as with uncertain definition"); United States v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) (Cook, J. dissenting) ("[t]hat multiplicity for sentencing is a mess in the military justice system is a proposition with which I believe few people familiar with our system would take issue").
Multiplicity and unreasonable multiplication of charges are two distinct concepts. Unreasonable multiplication of charges as applied to findings and sentence is a limitation on the prosecution's discretion to charge separate offenses. Unreasonable multiplication of charges does not have a foundation in the Constitution but is instead based on the concept of reasonableness and is a prohibition against prosecutorial overreaching. In contrast, multiplicity is based on the Double Jeopardy Clause of the Fifth Amendment and prevents an accused from being twice punished for one offense if it is contrary to the intent of Congress. A charge may be found not to be multiplicious but at the same time it may be dismissed because of unreasonable multiplication. See United States v. Quiroz, 55 M.J. 334, 337-38 (C.A.A.F. 2001).
Use of the term "multiplicity (or multiplicious) for sentencing" is inappropriate. If a charge is multiplicious, meaning that it violates the Constitutional prohibition against Double Jeopardy, it necessarily results in dismissal of the multiplied offenses, therefore obviating any issue on sentencing with respect to that charge. Campbell, 71 M.J. at 23. A charge should not be found multiplicious for sentencing but not for findings. Thus, the more appropriate term for the military judge's discretionary review of the charges at sentencing is "unreasonable multiplication of charges as applied to sentence." Id. at 24. The rule was changed to remove "multiplicity for sentencing" from the Manual, eliminating confusion and misuse.
Subparagraphs (i) and (ii) were added to the rule to clarify the distinction between unreasonable multiplication of charges as applied to findings and to sentence. Although these concepts have existed for years (see Michael J. Breslin & LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F.L. Rev. 99 (1998) for a history of the terms), they were not defined in previous editions of the Manual. The definitions were adopted from Quiroz, Campbell, and recommendations from Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F.L. Rev. 23 (2009). It is possible that two offenses are not unreasonably multiplied for findings but are so for sentencing; these additions explain how this can be so. See, e.g., Campbell, 71 M.J. at 25 (military judge did not abuse his discretion by finding that there was not an unreasonable multiplication of charges as applied to findings but that there was an unreasonable multiplication of charges as applied to sentence).
The discussion sections were added to address concerns that CAAF voiced in dicta in Campbell. In previous editions of the Manual, military judges often used the discussion section in R.C.M. 1003(c)(1) to determine when relief was warranted for unreasonable multiplication of charges as applied to sentence. The Campbell court stated in a footnote: "It is our view that after Quiroz, the language in the Discussion to R.C.M. 1003(c)(1)(C) regarding 'a single impulse or intent,' is dated and too restrictive. The better approach is to allow the military judge, in his or her discretion, to merge the offense for sentencing purposes by considering the Quiroz factors and any other relevant factor . . . ." Campbell, 71 M.J. at 24 n.9. The Discussion was changed to address the Quiroz factors and remove any reference to the "single impulse or intent" test, as suggested by CAAF. The committee also decided to move the Discussion section from R.C.M. 1003(b)(8)(C) to this rule because R.C.M. 1003 deals exclusively with sentencing and a motion for appropriate relief due to unreasonable multiplication of charges can be raised as an issue for findings or for sentence under this Rule. Therefore, it is more appropriate to address the issue here.
For more information on multiplicity and how it relates to unreasonable multiplication of charges, see Michael J. Breslin & LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F.L. Rev. 99 (1998); Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F.L. Rev. 23 (2009); Gary E. Felicetti, Surviving the Multiplicty/LIO Family Vortex, Army Law.R, Feb. 2011, at 46.
The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed because it is no longer necessary, as the rules themselves have been edited to remove any reference to "multiplicious for sentencing" and additional discussion sections were added to eliminate any confusion with the terms.
Subsection (13) is new to the Manual, although motions in limine have
been recognized previously. See Mil. R. Evid. 104(c);
United States v. Cofield, 11 M.J. 422 (C.M.A. 1981); Siano,
Motions in Limine, The Army Lawyer, 17 (Jan. 1976).
1994 Amendment. The Discussion to subparagraph (13) was amended
to reflect the holding in United States v. Sutton, 31 M.J.
11 (C.M.A. 1990). The Court of Military Appeals in Sutton held
that its decision in_United States v. Cofield_, 11 M.J. 422
(C.M.A. 1981), should not be relied upon to determine reviewability of preliminary
rulings in courts-martial. Instead, reviewability of preliminary rulings
will be controlled by_Luce v. United States_, 469 U.S. 38
(1984).
Subsection (14) is based on paragraph 69 f of
MCM, 1969 (Rev.). See Analysis, R.C.M. 706, R.C.M. 909,
and Analysis, R.C.M. 916(k).
This subsection is based on paragraphs 68 and 214 of MCM, 1969
(Rev.).
Fed. R. Crim. P. 48(a) is inapposite because the trial
counsel may not independently request dismissal of charges, and unnecessary
because the convening authority already has authority to withdraw and to
dismiss charges. See R.C.M. 306(c)(1); 401(c)(1); 604. The
matters contained in Fed. R. Crim. P. 48(b) are addressed by R.C.M. 707
and 907(b)(2)(A).
This subsection lists common grounds for motions to dismiss. It
is not intended to be exclusive. It is divided into three subsections. These
correspond to nonwaivable (subsection (1)) and waivable (subsection (2)
and (3)) motions to dismiss (see R.C.M. 905(e) and analysis),
and to circumstances which require dismissal (subsections (1) and (2)) and
those in which dismissal is only permissible (subsection (3).
Subsection (1) is based on paragraph 68 b of MCM, 1969 (Rev.). _
See also_ Fed. R. Crim. P. 12(b)(2) and 34.
Subsection (2)(A) is based on paragraph 68 i of MCM, 1969 (Rev.). _
See also_ 18 U.S.C. § 3162(a)(2). The rules for speedy
trial are covered in R.C.M. 707.
2005 Amendment: The discussion was based upon the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 551, 117 Stat. 1481 (2003). The amendment to Art. 43, UCMJ creates a statute of limitations period that extends until a child-victim attains the age of 25 years for certain specified UCMJ and federal offenses committed on or after 24 November 1998. Due to Ex Post Facto considerations, allowance is required for those child abuse cases in which the five-year statute of limitations was expired at the time the amendment to Article 43, UCMJ, became effective. See generally Stogner v. California, 539 U.S. 607, 609 (2003). All child abuse offenses committed prior to that date would be subject to the previous five-year statute of limitations that would expire on the day prior to the effective date of the amendment - November 24, 2003. The referenced case permits unexpired periods to be extended by the new statute, but does not allow the statute to renew an expired period.
2007 Amendment: The discussion was changed based upon the National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 553, 119 Stat. 3136 (2006). The amendment to Art. 43, UCMJ creates a statute of limitations period that extends through the life of a child-victim or for 5 years, whichever is longer, for certain specified UCMJ and federal offenses. At least one court has ruled that the new statute of limitations applied retrospectively to all offenses for which the original statute had not expired on the date when the extensions were enacted. See United States v. Ratliff, 65 M.J. 806 (N.M.C.C.A. 2007), stay granted United States v. Ratliff, 2007 CAAF LEXIS 1598 (C.A.A.F., Dec. 3, 2007).
Subsection (2)(B) is based on the first two paragraphs in paragraph 68 c of MCM, 1969 (Rev.); United States v. Troxell, 12 U.S.C.M.A. 6, 30 C.M.R.
6 (1960); United States v. Rodgers, 8 U.S.C.M.A. 226, 24
C.M.R. 36 (1957). The discussion is based on paragraphs 68 c
and 215 d of MCM, 1969 (Rev.). _See also United States
States v. Spain_, 10 U.S.C.M.A. 410, 27 C.M.R. 484 (1959); _
United States v. Reeves_, 49 C.M.R. 841 (A.C.M.R. 1975).
_
1987 Amendment:_ The discussion under subsection (b)(2)(B) was revised
to reflect several amendments to Article 43, UCMJ, contained in the "Military
Justice Amendments of 1986," tit. VIII, § 805, National
Defense Authorization Act for fiscal year 1987, Pub. L. No. 99-661,
100 Stat. 3905, (1986). These amendments were derived, in part, from Chapter
213 of Title 18, United States Code.
_1990 Amendment:
_ The fourth paragraph of the discussion under subsection (b)(2)(B)
was amended to reflect the holding in United States v. Tunnell,
23 M.J. 110 (C.M.A. 1986).
Subsection (2)(C) is based on paragraph
215 b of MCM, 1969 (Rev.) and Article 44. _See also
_ paragraph 56 of MCM, 1969 (Rev.). Concerning the applicability
to courts-martial of the double jeopardy clause (U.S. Const. Amend. V), _
see Wade v. Hunter_, 336 U.S. 684 (1949); _United States
See also United States v. Francis_, 15 M.J. 424 (C.M.A. 1983).
Subsection
(2)(C)(i) is based on Article 44(c). The applicability of _Crist
that, in jury cases, jeopardy attaches when the jury is empanelled and sworn.
For reasons stated below, the Working Group concluded that the beginning
of the presentation of evidence on the merits, which is the constitutional
standard for nonjury trial (Crist v. Bretz, supra at 37
is prescribed by Article 44(c), is the proper cutoff point.
There
is no jury in courts-martial. O'Callahan v. Parker, 395
U.S. 258 (1969); Ex parte Quirin, 317 U.S. 1 (1942); _
United States v. Crawford_, 15 U.S.C.M.A. 31, 35 C.M.R. 3, (1964). _
See also United States v. McCarthy_, 2 M.J. 26, 29 n.3 (C.M.A. 1976).
Members are an essential jurisdictional element of a court-martial. _
United States v. Ryan_, 5 M.J. 97 (C.M.A. 1978). Historically the
members, as an entity, served as jury _ and_ judge, or, in
other words, as the "court." W. Winthrop, _Military Law
and Precedents_ 54-55, 173 (2d. ed., 1920 reprint). Assembling
the court-martial has not been the last step before trial on the merits. _
See_ paragraph 61 j and appendix 8 b of
MCM, 1969 (Rev.); paragraph 61 h and i and
appendix 8 a of MCM, 1951; paragraph 61 of MCM, 1949 (Army);
paragraph 61 of MCM, 1928; W. Winthrop,supra at 205-80.
Congress clearly contemplated that the members may be sworn at an early
point in the proceedings. See Article 42(a); H. Rep. No.
491, 81st Cong. 1st Sess. 22 (1949).
The role of members has
become somewhat more analogous to that of a jury. See, e.g.,
Article 39(a). Nevertheless, significant differences remain. When they are
present, the members with the military judge constitute the court-martial
and participate in the exercise of contempt power. Article 48. _
See_ R.C.M. 809 and analysis. Moreover members may sit as a special
court-martial without a military judge, in which case they exercise all
judicial functions. Articles 19; 26; 40; 41; 51; 52.
The holding
in Crist would have adverse practical effect if applied
in the military. In addition to being unworkable in special court-martial
without a military judge, it would negate the utility of Article 29, which
provides that the assembly of the court-martial does not wholly preclude
later substitution of members. This provision recognizes that military exigencies
or other unusual circumstances may cause a member to be unavailable at any
stage in the court-martial. It also recognizes that the special need of the
military to dispose of offenses swiftly, without necessary diversion of personnel
and other resources, may justify continuing the trial with substituted members,
rather that requiring a mistrial. This provision is squarely at odds with
civilian practice with respect to juries and, therefore, with the rationale
in _ Crist_.
Subsection (2)(C)(ii) is based on
paragraph 56 of MCM, 1969 (Rev). _See also Wade v. Hunter, supra;
United States v. Perez_, 22 U.S. (9 Wheat.) 579 (1824). "Manifest
necessity" is the traditional justification for a mistrial. _
Id. See United States v. Richardson, supra. Cf._ Article 44(c),
which does not prohibit retrial of a proceeding terminated on motion of the
accused. See also Analysis, R.C.M. 915.
Subsection
(2)(C)(ii) is taken from Article 44(b). _See United States v. Richardson,
supra. See also_ Article 63. But see R.C.M. 810(d).
Subsection(2)(C)(iv)
is new. It is axiomatic that jeopardy does not attach in a proceeding which
lacks jurisdiction. Ball v. United States, 163 U.S. 662
(1973). Therefore, if proceedings are terminated before findings because
the court-martial lacks jurisdiction, retrial is not barred if the jurisdictional
defect is corrected. For example, if during the course of trial it is discovered
that the charges were not referred to the court-martial by a person empowered
to do so, those proceedings would be terminated. This would not bar later
referral of those charges by a proper official to a court-martial. _
Cf. Lee v. United States_, 432 U.S. 23 (1977); _Illinois v.
Somerville_, 410 U.S. 458 (1973). _See also United States
_, 4 M.J. 20 (C.M.A. 1977) authorizing re-referral of charges where
earlier proceedings lacked jurisdiction because of defects in referral and
composition. Res judicata would bar retrial by a court-martial for a jurisdictional
defect which is not "correctable." See, e.g.,
R.C.M. 202 and 203. See also R.C.M. 905(g).
By
its terms, the rule permits a retrial of a person acquitted by a court-martial
which lacks jurisdiction. The Court of Military Appeals decision in _
United States v. Culver_, 22 U.S.C.M.A. 141, 46 C.M.R. 141 (1973)
does not preclude this, although that decision raises questions concerning
this result. There was no majority opinion in Culver. Judge
Quinn held that the defect (absence of a written judge alone request) was
not jurisdictional. In the alternative, Judge Quinn construed paragraph 81 _
d_ of MCM, 1969 (Rev.) and the automatic review structure in courts-martial
as precluding retrial on an offense of which the accused had been acquitted.
(Note that R.C.M. 810(d), using slightly different language, continues the
same policy of limiting the maximum sentence for offenses tried at an "other
trial" to that adjudged at the earlier defective trial.) Judge Duncan,
concurring in the result in _ Culver_, found that although
the original trial was jurisdictionally defective, the defect was not so
fundamental as to render the proceedings void. In Judge Duncan's view, the
original court-martial had jurisdiction when it began, but "lost"
it when the request for military judge alone was not reduced to writing.
Therefore, the double jeopardy clause of the Fifth Amendment and Article
44 barred the second trial for an offense of which the accused had been acquitted
at the first. Chief Judge Darden dissented. He held that because the earlier
court-martial lacked jurisdiction, the proceedings were void and did not
bar the second trial. Thus in Culver, two judges divided
over whether the double jeopardy clause bars a second trial for an offense
of which the accused was acquitted at a court-martial which lacked jurisdiction
because of improper composition. The third judge held retrial was barred
on non constitutional grounds.
Subsection (2)(D) is based on paragraph
68 e f, g , and h of MCM, 1969 (Rev.).
As to subsection (iv) see United States v. Williams. 10
U.S.C.M.A. 615, 28 C.M.R. 181 (1959).
Subsection (3) sets out
grounds which, unlike those in subsection (1) and (2), do not _require
_ dismissal when they exist. The military judge has discretion whether
to dismiss or to apply another remedy (such as a continuance in the case
of subsection (3)(A), or sentencing instructions in the case of subsection
(3)(B)). But see United States v. Sturdivant, 13 M.J. 323
(C.M.A. 1982). See also United States v. Baker, 14 M.J.
361 (C.M.A. 1983).
Subsection (3)(A) and the discussion are based
on paragraph 69 b(3) of MCM, 1969 (Rev.).
Subsection
(3)(B) is based on paragraph 26 b, 74 b(4),
and 76 a(5) of MCM, 1969 (Rev.); _United States v.
Gibson_, 11 M.J. 435 (C.M.A. 1981); _United States v. Stegall
, 6 M.J. 176 (C.M.A. 1979); United States v. Williams_,
18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968).
2015 Amendment. This rule and related discussion is the focal point for addressing claims of multiplicity. If a practitioner seeks to raise a claim for unreasonable multiplication of charges, that concept is addressed in R.C.M. 906(b)(12) and related discussion. The heading of this rule was added to signify that this rule deals exclusively with multiplicity, and not unreasonable multiplication of charges. The discussion section of this rule was amended because the committee believed that a more thorough definition of multiplicity was appropriate in light of CAAF's suggestion in United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012), that the concepts of multiplicity and unreasonable multiplication of charges are often confounded.
The discussion of multiplicity is derived from the Supreme Court's holding in Blockburger v. United States, 284 U.S. 299 (1932), and CMA's holding in United States v. Teters, 37 M.J. 370 (C.M.A. 1993). The Court in Blockburger wrote: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304. Military courts departed from the Blockburger analysis; however, the CMA's decision in Teters clearly re-aligned the military courts with the federal courts, and multiplicity is now determined in the military courts by the Blockburger/Teters analysis outlined in the discussion section. Any reference to the "single impulse" or "fairly embraced" tests is outdated and should be avoided.
Two offenses that arise from the same transaction may not be multiplicious, even if each does not require proof of an element not required to prove the other, if the intent of Congress was that an accused could be convicted of and punished for both offenses arising out of the same act. The Blockburger/Teters analysis applies only when Congress did not intend that the offenses be treated as separate. If Congress intended to subject an accused to multiple punishments for the same transaction, and that intent is clear, the Blockburger/Teters elements comparison is unnecessary. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368-69 (1983) ("[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. . . . Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.").
The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed because it is no longer necessary, as the Rules themselves have been edited to remove any reference to "multiplicious for sentencing" and additional discussion sections were added to eliminate any confusion with the terms.
Introduction. This rule is based on Article
62, as amended, Military Justice Act of 1983, Pub. L. No. 98-209,
§ 5(c)(1), 97 Stat 1393 (1983). See also S.
Rep. No. 53, 98th Cong., 1st. Sess. 23 (1983); 18 U.S.C. § 3731.
Article 62 now provides the Government with a means to seek review of certain
rulings or orders of the military judge. The need for such procedure has
been recognized previously. See United States v. Rowel,
1 M.J. 289, 291 (C.M.A. 1976) (Fletcher, C.J., concurring). _See
also Dettinger v. United States_, 7 M.J. 216 (C.M.A. 1978). It is
not expected that every ruling or order which might be appealed by the Government
will be appealed. Frequent appeals by the Government would disrupt trial
dockets and could interfere with military operations and other activities,
and would impose a heavy burden on appellate courts and counsel. Therefore
this rule includes procedures to ensure that the Government's right to appeal
is exercised carefully. See S. Rep. No. 53 _ supra
_ at 23.
This subsection repeats the first sentence of Article 62(a).
_
1998 Amendment_: The change to R.C.M. 908(a) resulted from the amendment
to Article 62, UCMJ, in section 1141, National Defense Authorization Act
for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 466-67
(1996). It permits interlocutory appeal of rulings disclosing classified
information.
Subsection (1) provides the trial counsel with a mechanism to ensure
that further proceedings do not make an issue moot before the Government
can file notice of appeal.
The first sentence in subsection (2)
is based on the second sentence of Article 62(a). The second sentence in
subsection(2) authorizes an initial measure to ensure that a decision to
file notice of appeal is carefully considered. The Secretary concerned may
require trial counsel to secure authorization from another person, such
as the convening authority, the convening authority's designee, or the staff
judge advocate. Because the decision whether to file the notice must be
made within 72 hours, it probably will not be practicable in many cases
to secure authorization from a more distant authority (see
subsection (b)(5) and Analysis, below), but nothing in this subsection prohibits
requiring this authorization to be secured from, for example, the chief of
appellate Government counsel or a similar official in the office of the
Judge Advocate General. Note that the Secretary concerned is not required
to require authorization by anyone before notice of appeal is filed. The
provision is intended solely for the benefit of the Government, to avoid
disrupting trial dockets and the consequences this has on command activities,
and to prevent overburdening appellate courts and counsel. The accused has
no right to have the Government forego an appeal which it might take. _
But see_ R.C.M. 707(c)(1)(D). The authorization may be oral and no
reason need be given.
Subsection (3) is based on the second and
third sentences of Article 62(a). The second sentence is added to permit
decisions by defense counsel and the military judge on how to proceed as
to any unaffected charges and specifications under subsection (4).
Subsection
Fed. R. Crim. P. 8(a)), unrelated offenses_ may be and often are
tried together in courts-martial. Consequently, a ruling or order which is
appealable by the Government may affect only some charges and specifications.
As to those offenses, the pendency of an appeal under this rule necessarily
halts further proceedings. It does not necessarily have the same effect on
other charges and specifications unaffected by the appeal. Subsection (4)
provides several alternatives to halting the court-martial entirely, even
as to charges and specifications unaffected by the appeal. Subsection (4)(A)
permits motions to be litigated as to unaffected charges and specifications,
regardless of the stage of the proceedings. Subsection (4)(B) permits unaffected
charges and specifications to be served, but only before trial on the merits
has begun, that is, before jeopardy has attached. See R.C.M.
907(b)(2)(C) and Analysis. Once jeopardy has attached, the accused is entitled
to have all the charges and specification resolved by the same court-martial. _
Cf. Crist v. Bretz_, 437 U.S. 28 (1978). It is expected that in
most cases, rulings or orders subject to appeal by the Government will be
made before trial on the merits has begun. See R.C.M. 905(b)
and (e); Mil. R. Evid. 304(d), 311(d), and 321(c). Subsection (4)(C) provides
a mechanism to alleviate the adverse effect an appeal by the Government may
have on unaffected charges and specifications. Thus witnesses who are present
but whom it may be difficult and expensive to recall at a later time may,
at the request of the proponent party and in the discretion of the military
judge, be called to testify during the pendency of any appeal. Such witnesses
may be called out of order. See also R.C.M. 801(a); 914;
Mil. R. Evid. 611. Note, however, that a party cannot be compelled to call
such witnesses or present evidence until the appeal is resolved. This is
because a party's tactics may be affected by the resolution of the appeal.
Note also that if similar problems arise as to witnesses whose testimony
relates to an affected specification, a deposition could be taken, but it
could not be used at any later proceedings unless the witness was unavailable
or the parties did not object.
Subsection (5) ensures that a record
will be prepared promptly. Because the appeal ordinarily will involve only
specific issues, the record need be complete only as to relevant matters.
Defense counsel will ordinarily have the opportunity to object to any omissions. _
See_ R.C.M. 1103(i)(1)(B). Furthermore, the military judge and
the Court of Criminal Appeals may direct preparation of additional portions
of the record.
Subsection (6) provides for the matter to be forwarded
promptly. No specific time limit is established, but ordinarily the matters
specified should be forwarded within one working day. Note that the record
need not be forwarded at this point as that might delay disposition. If the
record is not ready, a summary may be forwarded for preliminary consideration
before completion of the record. An appropriate authority will then decide
whether to file the appeal, in accordance with procedures established by
the Judge Advocate General. See S.Rep. No. 53, _
supra_ at 23. This is an administrative determination; a decision
not to file the appeal has no effect as precedent. Again, no specific time
limit is set for this decision, but it should be made promptly under the
circumstances.
Subsection (7) is based on Article 62(b).
Subsection
filed.
1991 Amendment: Subsection (4) was amended
to state explicitly that, upon timely notice of appeal, the legal effect
of an appealable ruling or order is stayed pending appellate resolution.
Although most military practitioners understood this necessary effect of
an appeal under the rule, some civilian practitioners were confused by the
absence of an explicit statement in the rule.
New subsection
an accused pending appeal by the United States of an order of dismissal of
an indictment or information, or an order suppressing evidence. Since appeals
by the United States under Article 62, U.C.M.J., contemplate a situation
in which the accused has not been convicted, a commander's decision whether
to subject the individual to continued confinement after an appeal has been
taken should be based on the same considerations which would authorize the
imposition of pretrial confinement.
Subsection (1) is based on Article 70(b) and (c).
Subsection
Subsection (3) is based on Article
67(b) and (h) and on 28 U.S.C. § 1259. Note that if the decision
of the Court of Criminal Appeals permits it (i.e., is favorable to the Government)
the court-martial may proceed as to the affected charges and specifications
notwithstanding the possibility or pendency of review by the Court of Appeals
for the Armed Forces or the Supreme Court. Those courts could stay the proceedings.
The penultimate sentence is similar in purpose to Article 66(e) and 67(f).
This subsection is necessary because Article 62 authorizes appeals
by the Government only when a military judge is detailed.
_
1998 Amendment:_ The change to R.C.M. 908(a) resulted from the amendment
to Article 62, UCMJ, in section 1141, National Defense Authorization Act
for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 466-67 (1996).
It permits interlocutory appeal of rulings disclosing classified information.
This rule is based on paragraphs 120 a and
d, and 122 of MCM, 1969 (Rev.). It has been reorganized
and minor changes were made in some language in order to conform to the format
and style of the Rules for Courts-Martial. The procedures for examining the
mental capacity of the accused are covered in R.C.M. 706. Matters referring
solely to the accused's sanity at the time of the offense are treated at
R.C.M. 916(k). The rule is generally consistent with 18 U.S.C. § 4244.
The standard of proof has been changed from beyond reasonable doubt to a
preponderance of the evidence. This is consistent with the holdings of those
federal courts which have addressed the issue. _United States v. Gilio
_ , 538 F.2d 972 (3d. Cir. 1976), cert. denied,
429 U.S. 1038 (1977); United States v. Makris, 535 F.2d
899 (5th Cir. 1976), cert. denied, 430 U.S. 954 (1977).
_
February 1986 Amendment:_ Following passage of the Insanity Defense
Reform Act, ch. IV, Pub.L. No. 98-473, 98 Stat. 2058 (1984), the rule
was changed pursuant to Article 36, to conform to 18 U.S.C. § 4241(d).
_
1998 Amendment:_ The rule was changed to provide for the hospitalization
of an incompetent accused after the enactment of Article 76b, UCMJ, in section
1133 of the Nation Defense Authorization act for Fiscal Year 1996, Pub.
L. No. 104-106, 110 Stat. 464-66 (1996).
Introduction. This rule is based generally
on Article 45; paragraph 70 of MCM, 1969 (Rev.); and on Fed. R. Crim. P.
(1949); S.Rep. No. 486, 81st Cong., 1st Sess. 20-21 (1949). The format
generally follows that of Fed. R. Crim. P. 11.
Subsection (1) is based on Article 45 and paragraph 70 _
a_ of MCM, 1969 (Rev.). The first sentence parallels the first sentence
in Fed. R. Crim. P. 11(a)(1), except that no provision is made for pleas
of nolo contendere. Such a plea is unnecessary in courts-martial. _
Hearings on H. R. 4080 Before A Subcomm, of the Comm. on Armed Services
of the House of Representatives_. 81st Cong., 1st Sess. 1054 (1949). _
See_ 8A.J. Moore, Moore's Federal Practice Para. 11.07(1)
(1980 rev. ed) concerning the purpose of nolo pleas in civilian practice,
and a discussion of the controversy about them. Furthermore, the practice
connected with nolo pleas (see Fed. R. Crim. P. 11(f) which
does not require that a factual basis be established in order to accept a
plea of nolo contendere; see also Moore's supra at Para. 11.07(1)
is inconsistent with Article 45. The second sentence on Fed. R. Crim. P. 11(a) is covered under subsection (b) of this rule insofar as it pertains
to military practice.
1993 Amendment: The amendment
to R.C.M. 910(a)(1) removed the necessity of pleading guilty to a lesser
included offense by exceptions and substitutions. This parallels the amendment
to R.C.M. 918(a)(1), allowing a finding of guilty to a named lesser included
offense without mandating the use of exceptions and substitutions, made
to correspond more closely to verdict practice in federal district courts. _
See_ Analysis comments for R.C.M. 918(a)(1).
Subsection
judicial and governmental resources by dispensing with a full trial when
the only real issue is determined in a pretrial motion. As in the federal
courts, the absence of clear authority in courts-martial for such a procedure
has resulted in some uncertainty as to whether an accused could preserve
some issues for appellate review despite a plea of guilty. _See e.g.,
United States v. Schaffer_, 12 M.J. 425 (C.M.A. 1982); _
United States v. Mallett_, 14 M.J. 631 (A.C.M.R. 1982). Now such
issues may be preserved, but only in accordance with this subsection. _
See_ also subsection (j) of this rule.
There is no right
to enter a conditional guilty plea. The military judge and the Government
each have complete discretion whether to permit or consent to a conditional
guilty plea. Because the purpose of a conditional guilty plea is to conserve
judicial and government resources, this discretion is not subject to challenge
by the accused. The rationale for this discretion is further explained in
Fed. R. Crim. P. 11 advisory committee note:
The requirement of approval by the court is most appropriate, as it ensures,
for example, that the defendant is not allowed to take an appeal on the matter
which can only be fully developed by proceeding to trial (citation omitted).
As for consent by the government, it will ensure that conditional pleas
will be allowed only when the decision of the court of appeals will dispose
of the case either by allowing the pleas to stand or by such action as compelling
dismissal of the indictment or suppressing essential evidence. Absent such
circumstances, the conditional plea might only serve to postpone the trial
and require the government to try the case after substantial delay, during
which time witnesses may be lost, memories dimmed, and the offense grown
so stale as to lose jury appeal. The government is in a unique position to
determine whether the matter at issue would be case-dispositive, and, as
a party to the litigation, should have an absolute right to refuse to consent
to potentially prejudicial delay.
The last sentence of subsection (a)(2) has been added to the language of Fed. R. Crim. P. 11(a)(2).
This permits the Secretary concerned to require that consent of the Government
be obtained at higher echelons or at a centralized point. The consequences
of overuse of conditional guilty pleas will be visited upon appellate courts
and activities and the consequences of inappropriate use of them will typically
fall on a command or installation different from the one where the original
court-martial sat. Thus, it may be deemed appropriate to establish procedures
to guard against such problems.
The subsection is based on Article 45(a) and paragraph 70 _
a_ of MCM, 1969 (Rev.). It parallels the second sentence of Fed.
R. Crim. P. 11(a), but is broadened to conform to Article 45(a). The portion
of Fed. R. Crim. P. 11(a) concerning corporate defendants does not apply
in courts-martial. The discussion is based on the last sentence of the first
paragraph of paragraph 70 a of MCM, 1969 (Rev.).
This subsection is taken from Fed. R. Crim. P. 11(c) and is consistent
with paragraph 70 b(2) of MCM, 1969 (Rev.). _See
also_ H.R. Rep. No. 491, _ supra_ at 23-24; S.Rep.
No. 486, supra at 20-21; _Boykin v. Alabama
_, 395 U.S. 238 (1969); McCarthy v. United States,
394 U.S. 459 (1969); United States v. Care, 18 U.S.C.M.A.
535, 40 C.M.R. 247 (1969).
As to subsection (1), the requirement
that the accused understand the elements of the offense is of constitutional
dimensions. Henderson v. Morgan, 426 U.S. 637 (1976); _
see also United States v. Care, supra_. The elements need not be
listed as such, seriatim, if it clearly appears that the accused was apprised
of them in some manner and understood them and admits (see subsection
supra; United States v. Grecco_, 5 M.J. 1018 (C.M.A. 1976); _
United States v. Kilgore_, 21 U.S.C.M.A. 35, 44 C.M.R. 89 (1971). _
But see United States v. Pretlow_, 13 M.J. 85 (C.M.A. 1982).
Advice
concerning a mandatory minimum punishment would be required only when the
accused pleads guilty to murder under clause (1) or (4) of Article 118. The
accused could only do so if the case had been referred as not capital. As
to advice concerning the maximum penalty, the adoption of the language of
the federal rule is not intended to eliminate the requirement that the advice
state the maximum including any applicable escalation provisions. As to
misadvice concerning the maximum penalty _ see United States v. Walls
_, 9 M.J. 88 (C.M.A. 1981).
Subsection (2) of Fed. R.
Crim. P. 11(c) has been modified because of the absence of a right to counsel
in summary courts-martial. See R.C.M.1301(e) and Analysis.
In other courts-martial, full advice concerning counsel would ordinarily
have been given previously (see R.C.M.901(d)(4)) and need
not be repeated here. The discussion is based on paragraph 70 b(1)
of MCM, 1969 (Rev.) and H.Rep. 491, supra at 23-24,
S.Rep. 486, supra at 20-21.
Subsections
(3), (4), and (5) have been taken without substantial change from Fed. R.
Crim. P. 11(c). Subsections (3) and (4) are consistent with the last paragraph
and paragraph 70 b (2) of MCM, 1969 (Rev.). Subsection
the advice in subsection (5) see United States v. Conrad ,
598 F.2d 506 (9th Cir. 1979).
This subsection is based on Fed. R. Crim. P. 11(d) and is consistent
with paragraph 70 b(3) of MCM, 1969 (Rev.). As to the requirement
to inquire concerning the existence of a plea agreement, _see United
States v. Green_, 1 M.J. 453 (C.M.A. 1976).
This subsection is based on Fed. R. Crim. P. 11(f), except that
"shall" replaces "should" and it is specified that
the military judge must inquire of the accused concerning the factual basis
of the plea. This is required under Article 45(b) and is consistent with
paragraph 70 b(3) of MCM, 1969 (Rev.). _See also
_ H.R. Rep. 491, _ supra_ at 23-24; S.Rep. 486, _
supra_ at 20-21; United States v. Davenport,
9 M.J. 364 (C.M.A. 1980); United States v. Johnson, 1 M.J.
36 (C.M.A. 1975); _ United States v. Logan_, 22 U.S.C.M.A.
349, 47 C.M.R. 1 (1973). Notwithstanding the precatory term "should,"
the factual basis inquiry in Fed. R. Crim. P. 11(f) is, in practice, mandatory,
although the means for establishing it are broader. See J.
Moore, supra at Para.11.02(2). _See also ABA Standards,
Pleas of Guilty_ §1.6 (1978). The last sentence requiring that
the accused be placed under oath is designed to ensure compliance with Article
45 and to reduce the likelihood of later attacks on the providence of the
plea. This is consistent with federal civilian practice. See
Fed.R.Evid. 410.
The first paragraph in the discussion is also
based on _ United States v. Jemmings_, 1 M.J. 414 (C.M.A.
1976); _United States v. Kilgore, supra; United States v. Care, supra.
See also United States v. Crouch_, 11 M.J. 128 (C.M.A. 1981).
The
second paragraph in the discussion is new and is based on _United
States v. Moglia_, 3 M.J. 216 (C.M.A. 1977); _United States
States v. Butler_, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971).
This subsection is based on Fed. R. Crim. P. 11(e), with substantial
modifications to conform to plea agreement procedures in the military. _
See_ R.C.M. 705 and Analysis. The procedures here conform to those
prescribed in _United States v. Green, supra. See also United States
It is not intended
that failure to comply with this subsection will necessarily result in an improvident plea.
See United States v. Passini, supra; cf. United States v. Davenport, supra. Contra United States v. King, 3 M.J.
458 (C.M.A. 1977). Proceedings in revision may be appropriate to correct
a defect discovered after final adjournment. _United States v. Steck
_, 10 M.J. 412 (C.M.A. 1981). Even if a prejudicial defect in the
agreement is found, as a result of an inadequate inquiry or otherwise, allowing
withdrawal of the plea is not necessarily the appropriate remedy. _
See Santobello v. New York_, 404 U.S. 257 (1971); _United
States v. Kraffa_, 11 M.J. 453 (C.M.A. 1981); _United States
is conducted, however, the parties are normally bound by the terms described
on the record. Id,; United States v. Cooke , 11 M.J. 257
(C.M.A. 1981). But see United States v. Partin, 7 M.J. 409
(C.M.A. 1979) (the parties were not bound by military judge's interpretation
which had the effect of adding illegal terms to the agreement; the plea
was held provident).
This subsection is based on the last paragraph of paragraph 70 _
b_ of MCM, 1969 (Rev.). See also Articles 39(a)(3)
and 52(a)(2). The discussion is new and recognizes that it may be unnecessary
and inappropriate to bring to the member's attention the fact that the accused
has pleaded guilty to some offenses before trial on the merits of others. _
See United States v. Nixon_, 15 M.J. 1028 (A.C.M.R. 1983). _
See also United States v. Wahnon_, 1 M.J. 144 (C.M.A. 1975).
_
1990 Amendment:_ The discussion to the subsection was changed in
light of the decision in United States v. Rivera, 23 M.J.
89 (C.M.A.), cert. denied, 479 U.S. 1091 (1986).
Subsection (1) is based on the fourth and fifth sentences of the
penultimate paragraph of paragraph 70 b of MCM, 1969 (Rev.).
Note that once a plea of guilty is accepted the accused may withdraw it only
within the discretion of the military judge. Before the plea is accepted,
the accused may withdraw it as a matter of right. _See United States
Leonard_, 16 M.J. 984 (A.C.M.R. 1983); _United States
Hayes_, 9 M.J. 825 (N.C.MR. 1980).
Subsection (2)
is based on the first two sentences in the penultimate paragraph of paragraph
70 b of MCM, 1969 (Rev.) and on Article 45(a). _
See also_ Fed. R. Crim. P. 32(d). The discussion is based on _
United States v. Cooper_, 8 M.J. 5 (C.M.A. 1979); _United
States v. Bradley_, 7 M.J. 332 (C.M.A. 1979). Subsection (3) is
based on _United States v. Green, supra. See also United States
This subsection is based on subparagraph (4) of the first paragraph
of paragraph 70 b of MCM, 1969. See also Article
54; H.R. Rep. No. 491, _ supra_ at 24; S. Rep. No. 486, _
supra_ at 21; ABA Standards, Pleas of Guilty supra at
§1.7. This subsection parallels Fed. R. Crim. P. 11(g), except insofar
as the former allows for nonverbatim records in inferior courts-martial. _
See_ Article 54(b).
This subsection replaces the third paragraph in paragraph 70 _
a_ of MCM, 1969 (Rev.) which listed some things a guilty plea did
not waive, and which was somewhat misleading in the wake of the pleading
standards under United States v. Alef, 3 M.J. 414 (C.M.A.
1977). This subsection is based on Menna v. New York, 423
U.S. 61 (1975); Tollett v. Henderson, 411 U.S. 258 (1973); _
Parker v. North Carolina_, 397 U.S. 790 (1970); _McMann v.
Richardson_, 397 U.S. 759 (1970); _Brady v. United States
_, 397 U.S. 742 (1970); United States v. Engle,
1 M.J. 387 (C.M.A. 1976); United States v. Dusenberry, 23
U.S.C.M.A. 287, 49 C.M.R. 536 (1975); United States v. Hamil,
15 U.S.C.M.A. 110, 35 C.M.R. 82 (1964). See also subsection
(a)(2) of this rule and its analysis.
The code fixes no specific point in the court-martial for
assembly although, as noted in the discussion, it establishes assembly as
a point after which the opportunities to change the composition and membership
of the court-martial are substantially circumscribed. _See United
States v. Morris_, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975); _
United States v. Dean_, 20 U.S.C.M.A. 212, 43 C.M.R. 52 (1970).
The
purpose of this rule is simply to require an overt manifestation of assembly
in order to mark clearly for all participants the point at which the opportunities
to elect freely as to composition or to substitute personnel has ended.
Failure to make the announcement described in the rule has no substantive
effect other than to leave open a dispute as to whether a change in composition
or membership was timely.
The rule prescribes no specific point
for assembly. The points noted in the discussion are based on paragraph
61 j of MCM, 1969 (Rev.). It is normally appropriate to
assemble the court-martial at these points to protect the parties from untimely
changes in membership or composition. In some circumstances flexibility
is desirable, as when the military judge approves a request for trial by
military judge alone, but recognizes that it may be necessary to substitute
another judge because of impending delays. The discussion is also based
on paragraphs 53 d(2)(c) and 61 b of MCM,
1969 (Rev.).
Subsection (1) recognizes the usefulness of questionnaires to expedite
voir dire. Questionnaires are already used in some military jurisdictions.
This procedure is analogous to the use of juror qualification forms under
28 U.S.C. § 1864(a). See also ABA Standards, Trial
by Jury § 2.1(b) (1979). It is not intended that questionnaires will
be used as a complete substitute for voir dire. As to investigations of
members, see also ABA Standards, The Prosecution Function §
3-5.3(b) (1979); The Defense Function § 4-7.2(b) (1979).
Subsection
of the court-martial (see subsection (b) of this rule) discovery
of the materials used to select them is necessary. Such discovery is already
common. See, e.g., United States v. Greene, 20 U.S.C.M.A.
232, 43 C.M.R. 72 (1970); United States v. Herndon, 50 C.M.R.
166 (A.C.M.R. 1975); United States v. Perry, 47 C.M.R.
89 (A.C.M.R. 1973). The purpose of this procedure is analogous to that
of 18 U.S.C. §§ 1867(f) and 1868. The rule is a discovery device;
it is not intended to limit the types of evidence which may be admissible
concerning the selection process.
This subsection is based on 28 U.S.C. § 1867(a), (b) and (d).
Other subsections in that section are inapposite to the military. No similar
provision appeared in MCM, 1969 (Rev.). Nevertheless, a motion for appropriate
relief challenging the selection of members and requesting a new one was
recognized. See United States v. Daigle, 1 M.J. 139 (C.M.A.
1975); United States v. Young, 49 C.M.R. 133 (A.F.C.M.R.
1974). Except for matters affecting the composition of the court-martial
(see Article 16 and 25(a), (b) and (c)), improper selection
of members is not a jurisdictional defect. _ United States v. Daigle,
supra._ See also S. Rep. No. 53, 98th Cong., 18th
Sess. 12 (1983). _ Cf. United States v. Blaylock_, 15 M.J.
190 (C.M.A. 1983). The issue may be waived if not raised in a timely manner.
This subsection is based on the second sentence of paragraph 62_
b_ of MCM, 1969 (Rev.).
This subsection is based on Fed. R. Crim. P. 24(a). Paragraph 62_
b_ and h of MCM, 1969 (Rev.) discussed questioning
members. Paragraph 62_ b_ provided that "... the trial
or defense counsel may question the court, or individual members thereof." _
United States v. Slubowski_, 7 M.J. 461 (C.M.A. 1979), _reconsideration
not granted by equally divided court_, 9 M.J. 264 (C.M.A. 1980),
held that this provision did not establish a right of the parties to personally
question members. Instead, the court recognized that the procedures in Fed.
R. Crim. P. 24(a) are applicable to the military. _See also United
States v. Parker_, 6 U.S.C.M.A. 274, 19 C.M.R. 400 (1955). Therefore,
subsection (d) does not change current practice.
The discussion
is based generally on paragraph 62_b_ of MCM, 1969 (Rev.)
and encourages permitting counsel to question personally the members. _
See United States v. Slubowski, supra_ at 463 n.4; ABA Standards,
Trial by Jury § 2.4 (1979). As to the scope of voir dire generally, _
see Ristaino v. Ross_, 424 U.S. 589 (1977); _United States
Baldwin_ , 607 F.2d 1295 (9th Cir. 1979); _United States
Barnes_, 604 F.2d 121 (2d Cir. 1979); _ United States v.
Slubowski, supra; United States v. Parker, supra._ The second paragraph
of the discussion is based on _ABA Standards, The Prosecution Function
_ § 3-5.3(c). (1979); The Defense Function § 4-7.2(c)
(1979).
This subsection is based on the first sentence of paragraph 62_
h_(2) of MCM, 1969 (Rev.).
See generally Article 41(a). Subsection (1) is
based on Article 25 and paragraph 62 f of MCM, 1969 (Rev.).
The examples in the last paragraph of paragraph 62 f have
been placed in the discussion.
Subsection (2) is based on paragraphs
62 d and h(1) of MCM, 1969 (Rev.).
Subsection
1969 (Rev.). The first sentence is new. MCM, 1969 (Rev.) was silent on this
matter. The procedure is intended to protect the parties from prejudicial
disclosures before the members, and is in accord with practice in many courts-martial.
Paragraph 62 h(2) of MCM, 1969 (Rev.) advised that the
military judge "should be liberal in passing on challenges, but need
not sustain a challenge upon the mere assertion of the challenger."
The precatory language has been deleted from the rule as an unnecessary statement.
This deletion is not intended to change the policy expressed in that statement.
The
waiver rule in subsection (4) is based on United States v. Beer,
6 U.S.C.M.A. 180, 19 C.M.R. 306 (1955). See also _
United States v. Dyche_, 8 U.S.C.M.A. 430, 24 C.M.R. 240 (1957); _
United States v. Wolfe_, 8 U.S.C.M.A. 247, 24 C.M.R. 57 (1957).
Grounds (A) and (B) in subsection (f)(1) may not be waived, except as noted. _
See generally_ H. R. Rep. No. 491, 81st Cong, 1st Sess. 17-18 (1949); _
United States v. Newcomb_, 5 M.J. 4 (C.M.A. 1978). Membership of
enlisted members of the enlisted members of the accused's unit has been held
not to be jurisdictional, and, therefore, may be waived. _United
States v. Wilson_, 16 M.J. 678 (A.C.M.R. 1983); _United States
Kimball,_ 13 M.J. 659 (N.M.C.M.R. 1982); _United States
Tagert_, 11 M.J. 677 (N.M.C.M.R. 1981); _United States v.
Scott_, 25 C.M.R. 636 (A.B.R. 1957). _ Contra_ _
United States v. Anderson_, 10 M.J. 803 (A.F.C.M.R. 1981). The
Court of Military Appeals has held that the presence of a statutorily ineligible
member is not a jurisdictional defect. United States v. Miller,
3 M.J. 326 (C.M.A. 1977); United States v. Beer, supra. Ineligibility
of enlisted members from the accused's unit is designed to protect the
accused from prejudice and does not affect their competency. _See
Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services
_, 81st Cong. 1st Sess. 1140, 1150-52 (1949). See also S.
Rep. No. 53, 98th Cong., 1st Sess. 12(1983).
The second sentence
in subsection (4) is based on United States v. Seabrooks,
48 C.M.R. 471 (N.C.M.R. 1974). See also _United States
with federal practice. See, e.g., United States v. Richardson,
582 F.2d 968 (5th Cir. 1978). The third sentence clarifies the effect of
using or failing to use a peremptory challenge after a challenge for cause
is denied. This has been a subject of some controversy. _See United
States v. Harris_, 13 M.J. 288 (C.M.A. 1982); _United States
Failure to use a peremptory challenge at all has been held to waive any issue
as to denial of a challenge for cause. _United States v. Henderson
_, 11 U.S.C.M.A. 556, 29 C.M.R. 372 (1960). Because the right to
a peremptory challenge is independent to the right to challenge members for
cause, see Article 41, that right should not be forfeited
when a challenge for cause has been erroneously denied. _See United
States v. Baker_, 2 M.J. 773 (A.C.M.R. 1976). See also _
United States v. Rucker_, 557 F.2d 1046 (4th Cir. 1977); _
United States v. Nell_, 526 F.2d 1223 (5th Cir. 1976). _
See generally Swain v. Alabama_, 380 U.S. 202 (1965). The requirement
that a party peremptorily challenging a member it has unsuccessfully challenged
for cause state that it would have peremptorily challenged another member
is designed to prevent a "windfall" to a party which had no intent
to exercise its preemptory challenge against any other member. _
See United States v. Harris, supra_; _United States v. Shaffer
_, 2 U.S.C.M.A. 76, 6 C.M.R. 75 (1952); _United States v.
Cooper_, 8 M.J. 538 (N.C.M.R. 1979).
2005 Amendment: This rule change is intended to conform military practice to federal practice and limit appellate litigation when the challenged panel member could have been peremptorily challenged or actually did not participate in the trial due to a peremptory challenge by either party. This amendment is consistent with the President's lawful authority to promulgate a rule that would result in placing before the accused the hard choice faced by defendants in federal district courts - to let the challenged juror sit on the case and challenge the ruling on appeal or to use a peremptory challenge to remove the juror and ensure an impartial jury. See United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003); United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), petition for reconsideration denied, 57 M.J. 48 (C.A.A.F. 2002); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000).
Subsection (1) is based on Article 41(b). The second sentence is
new. Paragraph 62 e of MCM, 1969 (Rev.) stated that a peremptory
challenge "may be used before, during, or after challenges for cause."
Subsection (1) does not prevent a party from exercising a peremptory challenge
before challenges for cause, but it protects a party against being compelled
to use a peremptory challenge before challenges for cause are made. Each
party is entitled to one peremptory challenge. Article 41(b); _United
States v. Calley_, 46 C.M.R. 1131, 1162 (A.C.M.R.), aff'd, 23 U.S.C.M.A.
534, 48 C.M.R. 19 (1973). _But see United States v. Harris, supra
_ at 294 n. 3 (C.M.A. 1982) (Everett, C.J., dissenting). Fed. R.
Crim. P. 24(b) is inapplicable.
1994 Amendment. The
Discussion for R.C.M. 912(g)(1) was amended to incorporate _Batson
_, 33 M.J. 101 (C.M.A. 1991), cert. denied, 112
S.Ct. 1177 (1992); United States v. Moore, 28 M.J. 366
(C.M.A. 1989); and United States v. Santiago-Davila, 26 M.J.
380 (C.M.A. 1988).
Subsection (2) is based on _United
States v. White_ , 22 C.M.R. 892 (A.B.R. 1956); _United States
United States v. Fetch_, 17 C.M.R. 836 (A.F.B.R. 1954). The discussion
is based on the last sentence of paragraph 62_ d_ and the
last sentence of paragraph 62_ h_(4) of MCM, 1969 (Rev.).
The last sentence in the discussion is also based on_United States
This subsection is based on Articles 41, 51(a), and 52(c) and on
paragraph 62_ h_(3) of MCM, 1969 (Rev.).
Subsection (2) is based on paragraph 63 of MCM, 1969 (Rev.). _
See also_ United States v. Griffin, 8 M.J. 66
(C.M.A. 1979); United States v. Wilson, 7 U.S.C.M.A. 656,
23 C.M.R. 120 (1957); United States v. Moore, 4 U.S.C.M.A.
675, 16 C.M.R. 249 (1954). The distinction between witnesses for the prosecution
and witnesses for the defense has been eliminated for purpose of challenges,
notwithstanding the statutory basis for the former (Article 25(d)(2)) but
not the latter. Disqualification as a witness for the prosecution has been
held to be waivable. United States v. Beer, 6 U.S.C.M.A.
180, 19 C.M.R. 306 (1955). Consequently, there is no substantive distinction
between either ground.
Subsection (3) is taken from paragraph
64 of MCM, 1969 (Rev.). Cf. United States v. Goodman, 3
M.J. 1 (C.M.A. 1977) (military judge as investigator).
This subsection is based on Appendix 8 at 10-11 of MCM, 1969 (Rev.).
See also United States v. Waggoner, 6
M.J. 77 (C.M.A. 1978).
1990 Amendment: The second
sentence to the rule and the discussion which follows are based on the decision
in United States v. Rivera, 23 M.J. 89 (C.M.A. 1986). _
See also_ United States v. Wahnon, 1 M.J. 144 (C.M.A.
1975).
This subsection is based on the first of paragraph of paragraph
44 g(2) and the first paragraph of paragraph 48_
i_ of MCM, 1969 (Rev.). The discussion is taken from_ABA Standards,
The Prosecution Function_ § 3-5.5 (1979); _The
Defense Function_ § 4-7.4 (1979).
Subsection (1) is based on paragraph 54a of MCM, 1969 (Rev.), except
that (E), Additional rebuttal evidence, has been added
to expressly note the occasional need for further rebuttal.
Subsection
of the discussion of subsection (2) is based on paragraphs 44_ g_(2),
48_ i_, and 54 a of MCM, 1969 (Rev.) and
Mil. R. Evid. 611 and 614. The second paragraph of the discussion is based
on paragraphs 54 d and g of MCM, 1969
(Rev.).
Subsection (3) and the discussion are based on paragraph
54_ e_ of MCM, 1969 (Rev).
Subsection (4) is
based on paragraph 54_c_ of MCM, 1969 (Rev.).
Subsection
71 a of MCM, 1969 (Rev.) and is consistent with current
practice.
Introduction. This rule is based on Fed.
R. Crim. P. 26.2. Fed. R. Crim. P. 26.2 is based on the Jencks Act, 18
U.S.C. § 3500, which has long been applied in courts-martial. _
United States v. Albo_, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972); _
United States v. Walbert_, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963); _
United States v. Heinel_, 9 U.S.C.M.A. 259, 26 C.M.R. 39 (1958). _
See United States v. Jarrie_, 5 M.J. 193 (C.M.A. 1978); _ United
States v. Herndon_, 5 M.J. 175 (C.M.A. 1978); _United States
made during Article 32 investigation and demand at trial); _ United
States v. Calley_, 46 C.M.R. 1131 (A.C.M.R.), aff'd,
22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973); Kesler, _The Jencks Act: An
Introductory Analysis_, 13 The Advocate 391 (Nov- Dec. 1981); Lynch, _
Possession Under the Jencks Act_, 10 A.F.JAG Rptr 177 (Dec. 1981);
O'Brien, _The Jencks Act- A Recognized Tool for Military Defense Counsel
_ , 11 The Advocate 20 (Jan- Fed 1979); Waldrop, _The Jencks
Act_, 20 A.F.L. Rev. 93 (1978); Bogart, Jencks Act,
27 JAG J. 427 (1973); West, _Significance of the Jencks Act in Military
Law_, 30 Mil. L. Rev. 83 (1965). Fed. R. Crim. P. 26.2 expands the
Jencks Act by providing for disclosure by the defense as well as the prosecution,
based on United States v. Nobles, 422 U.S. 225 (1975). Otherwise,
it is not intended to change the requirements of the Jencks Act. Fed. R.
Crim. P. 26.2 Advisory Committee Note (Supp. v. 1981). Prosecution compliance
with R.C.M. 701 should make resort to this rule by the defense unnecessary
in most cases.
This rule, like Fed. R. Crim. P. 26.2, applies
at trial. It is not a discovery rule (_United States v. Ciesielski
_, 39 C.M.R. 839 (N.M.C.R. 1968)), and it does not apply to Article
32 hearings (contra, United States v. Jackson,
33 C.M.R. 884, 890 nn.3, 4 (A.F.B.R. 1963)). It is a distinct rule from the
rule requiring production for inspection by an opponent of memoranda used
by a witness to refresh recollection. United States v. Ellison,
46 C.M.R. 839 (A.F.C.M.R. 1972); cf. Mil. R. Evid. 612
and accompanying Analysis. The rule is not intended to discourage voluntary
disclosure before trial, even where R.C.M. 701 does not require disclosure,
so as to avoid delays at trial. Further, this rule does not foreclose other
avenues of discovery.
This subsection is based on Fed. R. Crim. P. 26.2(a). It has been
reworded to clarify what statements must be produced. "(I)n the possession
of the United States," and "in the possession of the accused
or defense counsel" are substituted for "in their possession"
to make clear that the rule is not limited to statements in the personal
possession of counsel. _ See_ 18 U.S.C. § 3500(a). As
to the meaning of "in the possession of the United States," _
see United States v. Calley, supra_ (testimony at congressional
hearing); see also United States v. Ali, 12 M.J. 1018
(A.C.M.R. 1982) (statements in possession of commander); _United States
United States v. Fountain_, 2 M.J. 1202 (N.C.M.R. 1976); _
United States v. Brakefield_, 43 C.M.R. 828 (A.C.M.R. 1971) (notes
taken by government psychiatrist).
This subsection is taken from Fed. R. Crim. P. 26.2(b).
This subsection is taken from Fed. R. Crim. P. 26.2(c). Failure
of a judge to make the required examination on request is error. _
United States v. White_, 37 C.M.R. 791 (A.F.B.R. 1966) (decision
under Jencks Act). Failure to preserve the statement after denial or excision
frustrates appellate review and is also error under decisions interpreting
18 U.S.C. § 3500. United States v. Dixon, 8 M.J. 149
(C.M.A. 1979); United States v. Jarrie, supra. However,
the statement need not be appended to the record (where it would become
public) because it is not error to consider the statement when forwarded
separately as this rule provides. United States v. Dixon, supra.
This subsection is taken from Fed. R. Crim. P. 26.2(d).
This subsection is based on Fed. R. Crim. P. 26.2(e). Although not
expressly mentioned there, the good faith loss and harmless error doctrines
under the Jencks Act would apparently apply. _See United States v.
Patterson_, 10 M.J. 599 (A.F.C.M.R. 1980); _United States
Dixon, United States v. Scott, United States v. Jarrie, and United States
the accused need not demonstrate prejudice on appeal (_United States
439 F.2d 642 (D.C. Cir. 1971); United States v. Ali, and_
United States v. Boiser_, both supra) and that
the military judge may not substitute the judge's assessment of the usefulness
of the statement for the assessment of the accused and defense counsel _
(United States v. Dixon and United States v. Kilmon_, both_
supra)._
This subsection is taken from Fed. R. Crim. P. 26.6(f).
In
subsection (1) the inclusion of statements approved or adopted by a witness
is consistent with 18 U.S.C. § 3500(e)(1). _ See United States
supra._
In subsection (2) the inclusion of substantially
verbatim recordings or transcriptions exceeds some interpretations under
18 U.S.C. § 3500. See, e.g., United States v. Matfield,
4 M.J. 843 (A.C.M.R.), pet. denied., 5 M.J. 182 (1978) (testimony
in a prior court-martial not accessible under 18 U.S.C. § 3500 but
accessible under a general "military due process" right to discovery).
1999 Amendment: This rule allows the military
judge to determine what procedure to use when taking testimony under Mil.
R. Evid. 611(d)(3). It states that normally such testimony should be taken
via a two-way closed circuit television system. The rule further prescribes
the procedures to be used if a television system is employed. The use of
two-way closed circuit television, to some degree, may defeat the purpose
of these alternative procedures, which is to avoid trauma to children. In
such cases, the judge has discretion to direct one-way television communication.
The use of one-way closed circuit television was approved by the Supreme
Court in Maryland v. Craig, 497 U.S. 836 (1990). This amendment
also gives the accused an election to absent himself from the courtroom
to prevent remote testimony. Such a provision gives the accused a greater
role in determining how this issue will be resolved.
2007 Amendment: The rule was amended to allow for technological advances in the methods used to transmit audio and visual information.
2007 Amendment: This rule describes the basic procedures that will be used when testimony of any witnesses, other than child witnesses pursuant to R.C.M. 914A, is received via remote means.
This subsection is based on the second and third sentences of paragraph
56 e(1) of MCM, 1969 (Rev.). _See generally Oregon
, 434 U.S. 497 (1978); Lee v. United States_, 432
U.S. 23 (1977); United States v. Dinitz, 424 U.S. 600 (1976); _
Illinois v. Somerville_ , 410 U.S. 458 (1973); _United States
22 U.S. (9 Wheat) 579 (1824); United States v. Richardson,
21 U.S.C.M.A. 54, 44 C.M.R. 108 (1971); _United States v. Schilling
_, 7 U.S.C.M.A. 482, 22 C.M.R. 272 (1957).
This subsection is based on paragraph 56 e(2) of
MCM, 1969 (Rev.). Because consent or lack thereof by the defense to a mistrial
may be determinative of a former jeopardy motion at a second trial, the
views of the defense must be sought.
Subsection (1) is based on the first sentence of paragraph 56 _
e_(1) of MCM, 1969 (Rev.). Note that dismissal of charges may have
the same effect as declaring a mistrial, depending on the grounds for dismissal. _
See Lee v. United States_ and Illinois v. Somerville, both _
supra._ Subsection (2) is based on the first two sentences of paragraph
56_ e_(3) of MCM, 1969 (Rev). See also _
Oregon v. Kennedy, supra; United States v. Scott_, 437 U.S. 82 (1978); _
Arizona v. Washington, United States v. Dinitz, Illinois v. Somerville_,
and United States v. Jorn, all supra; Gori v. United States,
367 U.S. 364 (1961); United States v. Richardson, supra. Subsection
that a declaration of a mistrial after findings does not trigger double jeopardy
protections. See United States v. Richardson, supra. Moreover
subsection (2) notes that certain types of prosecutorial misconduct resulting
in mistrial will trigger double jeopardy protections. _See United
States v. Jorn_, and United States v. Gori, both_
supra._ See also _ United States v. Dinitz
, and Illinois v. Sommerville,_ both _supra.
_
This subsection and the discussion are based on the third paragraph
of paragraph 214 of MCM, 1969 (Rev.).
Motions in bar of trial,
which were also covered in paragraph 214, are now covered in R.C.M. 907
since they are procedurally and conceptually different from the defenses
treated in R.C.M. 916.
This subsection is based on the fourth paragraph of paragraph 214
of MCM, 1969 (Rev.). See also paragraph 112 a of
MCM, 1969 (Rev.). See, e.g., United States v. Cuffee, 10
M.J. 381 (C.M.A. 1981). The first paragraph in the discussion is based
on the fifth paragraph of paragraph 214 of MCM, 1969 (Rev.). The second paragraph
in the discussion is based on United States v. Garcia, 1
M.J. 26 (C.M.A. 1975); United States v. Walker, 21 U.S.C.M.A.
376, 45 C.M.R.150 (1972); United States v. Ducksworth,
13 U.S.C.M.A. 515, 33 C.M.R. 47 (1963); _United States v. Bellamy
_, 47 C.M.R. 319 (A.C.M.R. 1973). It is unclear whether, under some
circumstances, an accused's testimony may negate a defense which might otherwise
have been raised by the evidence. _See United States v. Garcia, supra.
_
1986 Amendment: The requirement that
the accused prove lack of mental responsibility was added to implement Article
50 a, which was added to the UCMJ in the "Military
Justice Amendments of 1986," Tit. VIII, § 802, National Defense
Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905
(1986). Article 50a(b) adopted the provisions of 18 U.S.C. 20(b), created
by the Insanity Defense Reform Act, ch. IV, Pub. L. No. 98-473, 98 Stat.
2057 (1984). See generally Jones v. United States, 463
U.S. 354, 103 S. Ct. 3043, 3051 n.17 (1983); Leland v. Oregon,
343 U.S. 790, 799 (1952); S.Rep. No. 225, 98th Cong., 1st Sess. 224-25 (1983),
reprinted in 1984 U.S. Code Cong. & Ad. News 1, 226-27.
_
1998 Amendment:_ In enacting section 1113 of the National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
462 (1996), Congress amended Article 120, UCMJ, to create a mistake of fact
defense to a prosecution for carnal knowledge. The accused must prove by
a preponderance of the evidence that the person with whom he or she had sexual
intercourse was at least 12 years of age, and that the accused reasonably
believed that this person was at least 16 years of age. The changes to R.C.M.
916(b) and (j) implement this amendment.
2007 Amendment: Changes to this paragraph, deleting "carnal knowledge", are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.
2015 Amendment. Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, which superseded the previous paragraph 45, "Rape, sexual assault and other sexual misconduct," in its entirety and replaces paragraph 45 with "Rape and sexual assault generally." In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, "Rape and sexual assault of a child," and paragraph 45c, "Other sexual misconduct".
This subsection and the discussion are based on paragraph 216_
a_ of MCM, 1969 (Rev.). See also _United
States v. Evans._ 17 U.S.C.M.A. 238, 38 C.M.R. 36 (1967); _
United States v. Regalado_, 13 U.S.C.M.A. 480, 33 C.M.R. 12 (1963); _
United States v. Hamilton_, 10 U.S.C.M.A. 130, 27 C.M.R. 204 (1959).
The last sentence in the discussion is based on the second sentence of paragraph
195_ b_ of MCM (1951).
This subsection is based on paragraph 216_d_ of MCM,
1969 (Rev.); United States v. Calley, 22 U.S.C.M.A. 534,
48 C.M.R. 19 (1973); United States v. Cooley, 16 U.S.C.M.A.
24, 36 C.M.R. 180 (1966). See also _United States
Subsection (1) is based on the first paragraph of paragraph 216
c of MCM, 1969 (Rev.). The discussion is based on the
second paragraph of paragraph 216 _ c_ of MCM 1967 (Rev.). _
See also_ United States v. Jackson, 15 U.S.C.M.A.
603, 36 C.M.R. 101 (1966).
Subsection (2) is new and is based
on United States v. Acosta-Vergas, 13 U.S.C.M.A. 388, 32
C.M.R. 388 (1962).
Subsection (3) is based on the fourth paragraph
of paragraph 216_ c_ of MCM, 1969 (Rev.). _See also
_ United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977).
The second paragraph in the discussion is based on _United States
United States v. Thomas,_ 11 M.J. 315 (C.M.A. 1981).
_
1986 Amendment:_ References to subsections "(c)(1) or (2)"
was changed to "(e)(1) or (2)" to correct an error in MCM, 1984.
Subsection
MCM, 1969 (Rev.). See also _United States v. Yabut
_, 20 U.S.C.M.A. 393, 43 C.M.R. 233 (1971); _United States
States v. Brown_, 13 U.S.C.M.A. 485, 33 C.M.R. 7 (1963). The second
paragraph in the discussion is based on United States v. Smith,
13 U.S.C.M.A. 471, 33 C.M.R. 3 (1963).
Subsection (5) is based
on paragraph 216c of MCM, 1969 (Rev.) which described self-defense in terms
which also apply to defense of another. It is also based on _United
States v. Styron_, 21 C.M.R. 579 (C.G.B.R. 1956); _United
States v. Hernandez_, 19 C.M.R. 822 (A.F.B.R. 1955). _But
see_ R. Perkins, Criminal Law 1018-1022 (2d ed.
1969).
This subsection and the discussion are based on paragraph 216_
b_ of MCM, 1969 (Rev.). See also _United
States v. Tucker_, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); _
United States v. Redding_, 14 U.S.C.M.A. 242, 24 C.M.R. 22 (1963); _
United States v. Sandoval_, 4 U.S.C.M.A. 61, 15 C.M.R. 61 (1954); _
United States v. Small_, 45 C.M.R. 700 (A.C.M.R. 1972).
This subsection and the discussions are based on paragraph 216_
e_ of MCM, 1969 (Rev.). See also _United
States v. Vanzandt_, 14 M.J. 332 (C.M.A. 1982).
This subsection is based on paragraph 216 f of
MCM, 1969 (Rev.). Paragraph 216 f required that the fear
of the accused be that the accused would be harmed. This test was too narrow,
as the fear of injury to relatives or others may be a basis for this defense. _
United States v. Jemmings_, 1 M.J. 414 (C.M.A. 1976); _United
States v. Pinkston_, 18 U.S.C.M.A. 261, 39 C.M.R. 261 (1969). The
discussion is based on United States v. Jemmings, supra.
This subsection is based on paragraph 216 g of
MCM, 1969 (Rev.). _See United States v. Cooley, supra; United States
States v. Heims_, 3 U.S.C.M.A. 418, 12 C.M.R. 174 (1953).
This subsection is based on paragraph 216 i of
MCM, 1969 (Rev.); United States v. Jenkins, 22 U.S.C.M.A.
365, 47 C.M.R. 120 (1973); United States v. Hill, 13 U.S.C.M.A.
158, 32 C.M.R. 158, (1962); United States v. Greenwood,
6 U.S.C.M.A. 209, 19 C.M.R. 335 (1955); _United States v. Graham
_, 3 M.J. 962 (N.C.M.R.), pet denied, 4 M.J. 124
(1977); United States v. Coker, 2. M.J. 304 (A.F.C.M.R. 1976),
rev'd on other grounds, 4 M.J. 93 (C.M.A. 1977). See also _
United States v. Calley_, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973), _
aff'd_, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973).
_
1998 Amendment:_ In enacting section 1113 of the National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
462(1996), Congress amended Article 120, UCMJ to create a mistake of fact
defense to a prosecution for carnal knowledge. The accused must prove by
a preponderance of the evidence that the person with whom he or she had sexual
intercourse was at least 12 years of age, and that the accused reasonably
believed that this person was at least 12 years of age, and that the accused
reasonably believed that this person was at least 16 years of age. The changes
to R.C.M. 916(b) and (j) implement this amendment.
2007 Amendment: Changes to this paragraph, deleting "carnal knowledge" and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.
Paragraph (j)(3) is new and is based on the mistake of fact defense incorporated in section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.
2015 Amendment. Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, which superseded the previous paragraph 45, "Rape, sexual assault and other sexual misconduct," in its entirety and replaces paragraph 45 with "Rape and sexual assault generally." In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, "Rape and sexual assault of a child," and paragraph 45c, "Other sexual misconduct".
Paragraph (j)(3) was deleted based on the changes to Article 120 and in light of the fact that CAAF ruled that the statutory burden shift to the accused in the 2007 version of Article 120 was unconstitutional and the subsequent burden shift to the government to disprove consent beyond a reasonable doubt once the accused had raised the affirmative defense of consent by a preponderance of the evidence resulted in a legal impossibility. United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).
Subsection (1) is taken from paragraph 120 b of
MCM, 1969 (Rev). See also _United States v. Frederick
_, 3 M.J. 230 (C.M.A. 1977).
1986 Amendment: The
test for lack of mental responsibility in subsection (1) was changed to
implement Article 50a, which was added to the UCMJ in the "Military
Justice Amendments of 1986," tit. VIII, 802, National Defense Authorization
Act for fiscal year 1987, Pub.L. No. 99-661, 100 stat. 3905 (1986). Article
50a is modeled on 18 U.S.C. 20. See Insanity Defense Reform
Act, ch. IV, Pub. L. No. 98-473, 98 Stat. 2057 (1984). The new test deletes
the volitional prong of the American Law Institute's Model Penal Code Standard
(see United States v. Lyons, 731 F.2d 243 (5th Cir. 1984)
(en banc), cert. denied, 105 S. Ct. 323 (1985)), which was
applied to courts-martial in United States v. Frederick,
3 M.J. 230 (C.M.A. 1977). The new standard also changes the quantity of
mental disability necessary to establish the defense from "lacks substantial
capacity to appreciate" to being "unable to appreciate."
The new test is very similar to the test in M'Naghten's Case,
10 Cl. & F. 200, 8 Eng. Rep. 718 (House of Lords. 1843). _See
also_ Carroll, Insanity Defense Reform, 114 Mil.
L. Rev. 183 (1986).
_ 2004 Amendment:_ The Discussion
to R.C.M. 916(k)(1) was amended to add a cross-reference to R.C.M. 1102A.
Subsection
See also_ United States v. Higgins, 4 U.S.C.M.A.
143, 15 C.M.R. 143 (1954).
1986 Amendment: Subsection
in conformance with Article 50a, which was added to the UCMJ in the "Military
Justice Amendments of 1986," tit. VIII 802, National Defense Authorization
Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). Article
50a(a) is adopted from 18 U.S.C. § 20(a). Congress wrote the last sentence
of 18 U.S.C. § 20(a) (now also the last sentence of Article 50(a)) "to
insure that the insanity defense is not improperly resurrected in the guise
of showing some other affirmative defense, such as that the defendant had
has a 'diminished responsibility' on some similarly asserted
state of mind which would serve to excuse the offense and open the door,
once again, to needlessly confusing psychiatric testimony." S.Rep.
No. 225, 98th Cong. 1st Sess. 229(1983), reprinted in 1984
U.S.Code Cong. & Ad. News 1. 231. See Muench v. Israel, 715
F.2d 1124 (7th Cir. 1983), cert. denied, 104 S.Ct. 2682
(1984); State v. Wilcox, 436 N.E. 2d 523 (Ohio 1982).
Because
the language of section 20(a) and its legislative history have been contended
to be somewhat ambiguous regarding "diminished capacity" or "diminished
responsibility," this aspect of the legislation has been litigated
in Article III courts. United States v. Pohlot, Crim. No.
85-00354-01 (E.D. Pa. March 31, 1986) held that section 20(a) eliminated
the defense of diminished capacity. See also _United
States v. White_, 766 F.2d 22, 24-25 (1st Cir. 1985); U.S. DEPARTMENT
OF JUSTICE, HANDBOOK ON THE COMPREHENSIVE CRIME CONTROL ACT OF 1984 AND OTHER
CRIMINAL STATUTES ENACTED BY THE 98TH CONGRESS 58, 60 (December 1984). _
Contra_ United States v. Frisbee, 623 F. Supp.
1217 (N.D. Cal. 1985) (holding that Congress did not intend to eliminate
the defense of diminished capacity). See also Carroll,_
Insanity Defense Reform,_ 114 Mil. L. Rev. 183, 196 (1986). The
drafters concluded that Congress intended to eliminate this defense in section
20(a).
_ 2004 Amendment:_ Subsection (k)(2) was
modified to clarify that evidence of an accused's impaired mental state may
be admissible. See United States v. Schap, 49 M.J. 317 (1998); _
United States v. Berri,_ 33 M.J. 337 (C.M.A. 1991); _Ellis
Subsection (3)(A)
and the discussion are based on paragraph 122 a of MCM,
1969 (Rev.). Several matters in paragraph 122a are covered in other parts
of this subsection or in R.C.M. 909.
_1986 Amendment:
_ Subsection (3)(A) was amended to conform to article 50a(b) and
R.C.M. 916(b).
Subsection (3)(B) and the discussion are based
on paragraph 122 b(2) of MCM, 1969 (Rev.). The procedures
for an inquiry into the mental responsibility of the accused are covered
in R.C.M. 706.
Subsection (3)(C) is new. Article 51(b) prohibits
a military judge from ruling finally on the factual question of mental responsibility.
It does not, however, require that the question be treated as an interlocutory
one, and there is no apparent reason for doing so. The import of Article
51(b) is that the issue of mental responsibility may not be removed from
the factfinder. Moreover, to permit mental responsibility to be treated separately
from other issues relating to the general issue could work to the detriment
of the accused. Cf. United States v. Laws,
11 M.J. 475 (C.M.A. 1981).
(1)_ Not defenses generally._
Subsection
MCM, 1969 (Rev.). The discussion is based on the remainder of paragraph 216 _
j_ of MCM, 1969 (Rev.); R. Perkins, supra at 920-38. _
See also_ United States v. Sicley, 6 U.S.C.M.A. 402,
20 C.M.R. 118 (1955); United States v. Bishop, 2 M.J. 741
(A.F.C.M.R.), pet, denied, 3 M.J. 184 (1977).
Subsection
United States v. Hernandez_, 20 U.S.C.M.A. 219 43 C.M.R. 59 (2970); _
United States v. Ferguson_, 17 U.S.C.M.A. 441, 38 C.M.R. 239 (1968); _
United States v. Garcia_, 41 C.M.R. 638 (A.C.M.R. 1969). _
See United States v. Santiago-Vargas_, 5 M.J. (C.M.A. 1978) (pathological
intoxication).
This subsection is based on Fed. R. Crim. P. 29(a) and on the first
two sentences of paragraph 71 a of MCM, 1969 (Rev.). Paragraph
71 a did not expressly provide for a motion for a finding
of not guilty to be made sua sponte, as does Fed. R. Crim.
P. 29(a). Unlike Fed. R. Crim. P. 29, this rule requires the motion to be
resolved before findings are entered. If the evidence is insufficient to
support a rational finding of guilty, there is no reason to submit the issue
to the members. That would be inefficient. Moreover, if a military judge
set aside some but not all of the findings as "irrational,"
it would be awkward to proceed to sentencing before the same members. However,
nothing in this rule is intended to limit the authority of a military judge
to dismiss charges after findings on other grounds, such as multiplicity
or improper findings (e.g., conviction for both larceny
as perpetrator and receiving stolen property, _see United States
Cartwright_, 13 M.J. 174 (C.M.A. 1982); _United States
Ford_, 12 U.S.C.M.A. 3, 30 C.M.R. 3 (1960);cf. _
United States v. Clark_, 20 U.S.C.M.A. 140, 42 C.M.R. 332 (1970)).
This subsection is based on the first sentence in the second paragraph
of paragraph 71 a of MCM, 1969 (Rev.), except that now
a statement of the deficiencies of proof is required. This will enable the
trial counsel to respond to the motion.
This subsection is new, although it conforms to current practice.
By ensuring that counsel may be heard on the motion, a precipitant ruling
will be avoided. This is important since a ruling granting the motion may
not be reconsidered. See United States v. Hitchcock, 6 M.J.
188 (C.M.A. 1979). The first paragraph in the discussion is based on the
fifth sentence of the second paragraph of paragraph 71 a of
MCM, 1969 (Rev.).
This subsection is based on the fourth sentence of the second paragraph
of paragraph 71 a of MCM, 1969 (Rev.). _See also
_ Jackson v. Virginia, 443 U.S. 307 (1979); _
United States v. Varkonyi_, 645 F.2d 453 (5th Cir. 1981); _
United States v. Beck_, 615 F.2d 441 (7th Cir. 1980).
This subsection is new and is intended to resolve the problem noted
in United States v. Spearman, 23 U.S.C.M.A. 31, 48 C.M.R.
405 (1974). See _Government of Virgin Islands v.
Josiah_, 641 F.2d 1103, 1108 (3d Cir. 1981).
This subsection is based on the third sentence of Article 51(a)
and on United States v. Hitchcock, supra.
_
1994 Amendment._ The amendment to subsection (f) clarifies that the
military judge may reconsider a ruling denying a motion for a finding of
not guilty at any time prior to authentication of the record of trial.
This amendment is consistent with United States v. Griffith,
27 M.J. 42 (C.M.A. 1988). As stated by the court, the reconsideration is
limited to a determination as to whether the evidence adduced is legally
sufficient to establish guilt rather than a determination based on the weight
of the evidence which remains the exclusive province of the finder of fact.
This subsection is based on the last sentence of the first paragraph
of paragraph 71 a of MCM, 1969 (Rev.). _See also
United States v. Bland_, 653 F.2d 989 (5th Cir.), _cert. denied
_, 454 U.S. 1055 (1981).
This subsection and the discussion are based on paragraphs 74 _
b_ and c of MCM, 1969 (Rev.). The discussion of
lesser included offenses is also based on Article 80. See also _
United States v. Scott_, 50 C.M.R. 630 (C.G.C.M.R. 1975).
Failure
to reach findings as to the charge or the designation of a wrong article
is not necessarily prejudicial. United States v. Dilday,
471 C.M.R. 172 (A.C.M.R. 1973).
1986 Amendment: The
provisions allowing for findings of not guilty only by reason of lack
of mental responsibility were added to subsections (a)(1) and (2) to implement
Article 50a(c), which was added to the UCMJ in the "Military Justice
Amendments of 1986," Tit. VIII, 802, National Defense Authorization
Act for Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). This
finding is modeled after 18 U.S.C. § 4242(b)(3), section 403 of the
Insanity Defense Reform Act, ch. IV, Pub.L. No. 98-473, 98 Stat. 2057, 2059.
The drafters intended that adoption of the finding of "not guilty only
by reason of lack of mental responsibility" does not require conformance
to the procedures that follow an insanity acquittal in federal courts
(see U.S.C. § 4243 et. seq.). The
Services are free to use available medical and administrative procedures
which address disposition of servicemembers having psychiatric illnesses.
The drafters further intended that, for purposes of subsequent appellate
and other legal reviews under this Manual, a finding of "not guilty
only by reason of lack of mental responsibility" shall be treated as
any other acquittal.
1993 Amendment: The amendment
to R.C.M. 918(a)(1) allows for a finding of guilty of a named lesser included
offense of the charged offense, and eliminates the necessity of making findings
by exceptions and substitutions. This serves to conform military practice
to that used in criminal trials before federal district courts. _
See_ Fed. R. Crim. P. 31(c); E. Devitt and C. Blackman, _
Federal Jury Practice and Instructions,_ 18.07 (1977). The practice
of using exceptions and substitutions is retained for those cases in which
the military judge or court members must conform the findings to the evidence
actually presented, e.g., a larceny case in which the finding
is that the accused stole several of the items alleged in the specification
but not others.
This subsection is based on Article 51(d), paragraph 74_
i_ of MCM, 1969 (Rev.); United States v. Gerard,
11 M.J. 440 (C.M.A. 1981). _ See also_ _United States
Pratcher_ 14 M.J. 819 (A.C.M.R. 1982); _United States
Burke_, 4 M.J. 530 (N.C.M.R. 1977); _United States v. Hussey
_, 1 M.J. 804 (A.F.C.M.R. 1976); United States v. Baker,
47 C.M.R. 506 (A.C.M.R. 1973); United States v. Falin, 43
C.M.R. 702 (A.C.M.R. 1971); United States v. Robertson,
41 C.M.R. 457 (A.C.M.R. 1969); Schinasi, _Special Findings: Their
Use at Trial and on Appeal,_ 87 Mil.L.Rev. (Winter 1980).
The
requirement that a request for special findings be made before general findings
are announced is based on the fifth sentence of paragraph 74 i of
MCM, 1969 (Rev.), and on Fed. R. Crim. P. 23(c). Article 51(d) is patterned
after Fed. R. Crim. P. 23(c). _ United States v. Gerard, supra._
The language in Article 51(d) is virtually identical to that in Fed. R. Crim.
P. 23(c) as it existed when Article 51(d) was adopted in 1968. Fed. R. Crim.
P. 23(c) was amended in 1977 to provide specifically that a request for
special findings be made before general findings are entered. Pub. L. No.
95-78 § 2(b), 91 Stat. 320. This was done "to make clear
that deadline for making a request for findings of fact and to provide
that findings may be oral." Id., Advisory Committee
Note (Supp. v. 1981). Subsection (b), therefore, continues conformity with
federal practice.
This subsection and the discussion are based on paragraph 74 _
a_ of MCM, 1969 (Rev.). The discussion of reasonable doubt has been
modified based on United States v. Cotten, 10 M.J. 260
(C.M.A. 1981); United States v. Salley, 9 M.J. 189 (C.M.A.
1980). See also Holland v. United States,
348 U.S. 121, 140-41 (1954); United States v. Previte, 648
F.2d 73 (1st Cir. 1981); United States v. De Vincent, 632
F.2d 147 (1st Cir.), cert denied, 449 U.S. 986 (1980); _
United States v. Cortez_, 521 F.2d 1 (5th Cir. 1975); _United
States v. Zeigler_, 14 M.J. 860 (A.C.M.R. 1982); _United States
M.J. 320 (1981); United States v. Crumb, 10 M.J. 520 (A.C.M.R.
1980); E. Devitt and C. Blackmar, _Federal Jury Practice Instructions,
_ § 11.14 (3d. ed. 1977). As to instructions concerning
accomplice testimony, see United States v. Lee, 6 M.J.
96 (C.M.A. 1978); United States v. Moore, 8 M.J. 738 (A.F.C.M.R.
1980), _ aff'd,_ 10 M.J. 405 (C.M.A. 1981) (regarding corroboration).
This subsection is based on Fed. R. Crim. P. 29.1. It has been
reworded slightly to make clear that trial counsel may waive the opening
and the closing argument. The rule is consistent with the first sentence
of paragraph 72 a of MCM, 1969 (Rev.).
This subsection is based on the first sentence of the second paragraph
of paragraph 72 b of MCM, 1969 (Rev.). The discussion is
based on paragraphs 72 _ a_ and b of MCM,
1969 (Rev.). See also paragraphs 44 g and
48 c of MCM, 1969 (Rev.); _Griffin v. California
, 380 U.S. 609 (1965) (comment on accused's failure to testify);
United States v. Saint John_, 23 U.S.C.M.A. 20, 48 C.M.R. 312 (1974)
(comment on unrebutted nature of prosecution evidence); _United States
improper but not prejudicial); United States v. Knickerbocker,
2 M.J. 128 (C.M.A. 1977) (personal opinion of counsel); _United States
United States v. Nelson_, 1 M.J. 235 (C.M.A. 1975) (comment on Article
32 testimony of accused permitted; inflammatory argument; misleading argument); _
United States v. Reiner_, 15 M.J. 38 (C.M.A. 1983); _United
States v. Fields_, 15 M.J. 34 (C.M.A. 1983); _United States
attention that accused had opportunity to hear the evidence at the Article
32 hearing is permissible); United States v. Boberg, 17
U.S.C.M.A. 401, 38 C.M.R. 199 (1968); United States v. Cook,
11 U.S.C.M.A. 99, 28 C.M.R. 323 (1959) (comment on community relations); _
United States v. McCauley_, 9 U.S.C.M.A. 65, 25 C.M.R. 327 (1958)
(citation of authority to members). See generally ABA Standards, _
The Prosecution Function_ § 3-5.8 (1979), _ The
Defense Function_ § 4-7.8 (1979). See also _
United States v. Clifton_, 15 M.J. 26 (C.M.A. 1983).
This subsection is based on Fed. R. Crim. P. 29.1 and is generally
consistent with current practice. See United States v. Grandy,
11 M.J. 270 (C.M.A. 1981). See also _United States
United States v. Knickerbocker, United States v. Shamberger_, and _
United States v. Nelson_ all _supra; United States v. Ryan
_, 21 U.S.C.M.A. 9, 44 C.M.R. 63 (1971); _United States v.
Wood_, 18 U.S.C.M.A. 291, 40 C.M.R. 3 (1969) (military judge had
duty to act on improper argument sua sponte where error
was plain). As to the discussion, _see United States v. Knickerbocker
_, and United States v. Nelson, both _supra;
_ United States v. O'Neal, 16 U.S.C.M.A. 33, 36 C.M.R.
189 (1966); United States v. Carpenter, 11 U.S.C.M.A. 418,
29 C.M.R. 234 (1960).
This subsection is based on the first sentence of paragraph 73 _
a_ of MCM, 1969 (Rev.). The discussion is based on the first paragraph
of paragraph 73 _ a_ of MCM, 1969 (Rev.). _See United
States v. Buchana_, 19 U.S.C.M.A. 394, 41 C.M.R. 394 (1970); _
United States v. Harrison_, 19 U.S.C.M.A. 179, 41 C.M.R. 179 (1970); _
United States v. Moore_, 16 U.S.C.M.A. 375, 36 C.M.R. 531 (1966); _
United States v. Smith_, 13 U.S.C.M.A. 471, 33 C.M.R. 3(1963). _
See also_ United States v. Gere, 662 F.2d 1291 (9th
Cir. 1981).
This subsection is based on the first sentence of paragraph 73 _
a_ and on paragraph 74 e of MCM, 1969 (Rev.), and
is consistent with Fed. R. Crim. P. 30. This subsection expressly provides
that additional instructions may be given after deliberations have begun
without a request from the members. MCM, 1969 (Rev.) was silent on this
point. The discussion is based on _ United States v. Ricketts_,
1 M.J. 78 (C.M.A. 1975).
1993 Amendment: The
amendment to R.C.M. 920(b) is based on the 1987 amendments to Federal Rule
of Criminal Procedure 30. Federal Rule of Criminal Procedure 30 was amended
to permit instructions either before or after arguments by counsel. The previous
version of R.C.M. 920 was based on the now superseded version of the federal
rule.
The purpose of this amendment is to give the court discretion
to instruct the members before or after closing arguments or at both times.
The amendment will permit courts to continue instructing the members after
arguments as Rule 30 and R.C.M. 920(b) had previously required. It will also
permit courts to instruct before arguments in order to give the parties an
opportunity to argue to the jury in light of the exact language used by
the court. See United States v. Slubowski, 7 M.J. 461 (C.M.A
1979); United States v. Pendry, 29 M.J. 694 (A.C.M.R. 1989).
This subsection is based on the first three sentences in Fed. R.
Crim. P. 30 and on the second and fourth sentences of paragraph 73 _
d_ of MCM, 1969 (Rev.). The discussion is based on the remainder
of paragraph 73 d.
The first sentence of this subsection is based on the last paragraph
of paragraph 73 a of MCM, 1969 (Rev.). The second sentence
of this subsection permits the use of written copies of instructions without
stating a preference for or against them. _See United States v. Slubowski
_, 7 M.J. 461 (C.M.A. 1979); United States v. Muir,
20 U.S.C.M.A. 188, 43 C.M.R. 28 (1970); _United States v. Sampson
, 7 M.J. 513 (A.C.M.R. 1979); United States v. Sanders
_, 30 C.M.R. 521 (A.C.M.R. 1961). Only copies of instructions given
orally may be provided, and delivery of only a portion of the oral instructions
to the members in writing is prohibited when a party objects. This should
eliminate the potential problems associated with written instructions. _
See United States v. Slubowski, supra; United States v. Caldwell_,
11 U.S.C.M.A. 257, 29 C.M.R. 73 (1960); _ United States v. Helm_,
21 C.M.R. 357 (A.B.R. 1956). Giving written instructions is never required.
The discussion is based on the last paragraph of paragraph 73 _a
_ of MCM, 1969 (Rev.) and _United States v. Caldwell, supra.
_ As to the use of written instructions in federal district courts, _
see generally United States v. Read_, 658 F.2d 1225 (7th Cir. 1981); _
United States v. Calabrase_, 645 F.2d 1379 (10th Cir.), _
cert. denied_, 454 U.S. 831 (1981).
This subsection is based on Article 51(c) and on the first paragraph
of paragraph 73 a of MCM, 1969 (Rev.). _See also
_ United States v. Steinruck, 11 M.J. 322 (C.M.A.
1981); United States v. Moore, supra; _United States
defense may affirmatively waive certain instructions (e.g., lesser
included offenses) which might otherwise be required, _see United
States v. Johnson_, 1 M.J. 137 (C.M.A. 1975); _United States
_ Cooper, _The Military Judge: More Than a Mere Reference,
_ The Army Lawyer (Aug. 1976) 1; Hilliard, _The Waiver Doctrine:
Is It Still Viable?,_ 18 A.F.L. Rev. 45 (Spring 1976).
_
1986 Amendment:_ Subsection (2) was amended to require the accused
to waive the bar of the statute of limitations if the accused desires instructions
on any lesser included offense otherwise barred. _Spaziano v. Florida
_, 468 U.S. 447 (1984). This overturns the holdings in _United
States v. Wiedemann_, 16 U.S.C.M.A. 356, 36 C.M.R. 521 (1966) and _
United States v. Cooper_, 16 U.S.C.M.A. 390, 37 C.M.R. 10 (1966).
The same rule applies in trials by military judge alone. Article 51(d). This
is consistent with Article 79 because an offense raised by the evidence but
barred by the statute of limitations is "necessarily included in the
offense charged," unless the accused waives the statute of limitations.
The
first paragraph in the discussion is based on _United States v. Jackson
_, 12 M.J. 163 (C.M.A. 1981); United States v. Waldron,
11 M.J. 36 (C.M.A. 19810; United States v. Evans, 17 U.S.C.M.A.
238, 38 C.M.R. 36 (1967); _United States v. Clark, supra. See United
States v. Johnson_, 637 F.2d 1224 (9th Cir. 1980); _United
States v. Burns_, 624 F.2d 95 (10th Cir), cert. denied,
449 U.S. 954 (1980).
The third paragraph in the discussion is
based on paragraph 73 a of MCM, 1969 (Rev.) and on _
Military Judges Benchbook,_ DA Pam 27-9 Appendix A. (May 1982). _
See also_ United States v. Thomas, 11 M.J. 388 (C.M.A.1981); _
United States v. Fowler_, 9 M.J. 149 (C.M.A. 1980); _United
States v. James_, 5 M.J. 382 (C.M.A. 1978) (uncharged misconduct); _
United States v. Robinson_, 11 M.J. 218 (C.M.A. 1981) (character
evidence); United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975)
(effect of guilty plea on other charges); _United States v. Minter
, 8 M.J. 867 (N.C.M.R.), aff'd,_ 9 M.J. 397 (C.M.A.
1980); United States v. Prowell, 1 M.J. 612 (A.C.M.R. 1975)
(effect of accused's absence from trial); _United States v. Jackson
_, 6 M.J. 116 (C.M.A. 1979); United States v. Farrington,
14 U.S.C.M.A. 614, 34 C.M.R. 394 (1964) (accused's failure to testify).
The list is not exhaustive.
The fourth paragraph in the discussion
is based on paragraph 73 c of MCM, 1969 (Rev.). _
See also_ United States v. Grandy, 11 M.J. 270 (C.M.A.
1981).
1986 Amendment: Subsection (e)(5)(D) was
amended to conform to amendments to R.C.M. 916(b).
_ 1998
Amendment:_ This change to R.C.M. 920(e) implemented Congress' creation
of a mistake of fact defense for carnal knowledge. Article 120(d), UCMJ,
provides that the accused must prove by a preponderance of the evidence
that the person with whom he or she had sexual intercourse was at least 12
years of age, and that the accused reasonably believed that this person was
at least 16 years of age.
2007 Amendment: Changes to this paragraph, deleting "carnal knowledge" and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.
2015 Amendment. Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, which superseded the previous paragraph 45, "Rape, sexual assault and other sexual misconduct," in its entirety and replaces paragraph 45 with "Rape and sexual assault generally." In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, "Rape and sexual assault of a child," and paragraph 45c, "Other sexual misconduct."
This subsection is based on the last two sentences in Fed. R. Crim.
P. 30. See also _United States v. Grandy, supra;
United States v. Salley_, 9 M.J. 189 (C.M.A. 1980).
This subsection is based on Article 39(b) and on the second, third,
and fifth sentences of paragraph 74 d(1) of MCM, 1969 (Rev.).
The first sentence of that paragraph is unnecessary and the fourth is covered
in subsection (b) of this rule.
The first sentence of this subsection is based on the fourth sentence
of paragraph 74 d(1) of MCM, 1969 (Rev.). The second sentence
is new but conforms to current practice. _See United States v. Hurt
_, 9 U.S.C.M.A. 735, 27 C.M.R. 3 (1958); _United States v.
Christensen_, 30 C.M.R. 959 (A.F.B.R. 1961). The third sentence
is based on United States v. Jackson, 6 M.J. 116, 117 (C.M.A.
States v. Smith_, 15 U.S.C.M.A. 416, 35 C.M.R. 388 (1965). _
See also_ paragraph 54 _ b_ of MCM, 1969 (Rev); _
United States v. Ronder_, 639 F.2d 931 (2d Cir. 1981).
Subsection (1) is based on the first sentence of Article 51(a) and
on the first sentence of paragraph 73 d(2) of MCM, 1969
(Rev.).
Subsection (2) is based on Article 52(a) and on the first
two sentences of paragraph 74 d(3) of MCM, 1969 (Rev.). _
See also_ United States v. Guilford, 8 M.J. 598
(A.C.M.R. 1979), pet. denied, 8 M.J. 242 (1980) (holding _
Burch v. Louisiana_, 441 U.S. 130 (1979), does not apply to courts-martial.)
The discussion is based on the third sentence of paragraph 74 _
d_(3) of MCM, 1969 (Rev.).
Subsection (3) is based on
the fourth sentence of paragraph 74 d(3) of MCM, 1969 (Rev.).
_
1986 Amendment:_ Subsections (4) and (5) were redesignated as subsections
based on Article 50a(e) and provides for bifurcated voting on the elements
of the offense and on mental responsibility, and defines the procedures for
arriving at a finding of not guilty only by reason of lack on mental responsibility.
When the prosecution had the burden of proving mental responsibility beyond
a reasonable doubt, the same as the burden regarding the elements of the
offense, the members were unlikely to confuse the two general issues. Without
any procedure for bifurcated voting under the 1984 amendment, substantial
confusion might result if the members were required to vote simultaneously
on whether the defense has proven lack of mental responsibility by clear
and convincing evidence, and whether the prosecution has proven the elements
of the offense beyond a reasonable doubt. Each issue might result in a different
number of votes. Bifurcated voting is also necessary to provide the finding
of "not guilty only by reason of lack of mental responsibility"
provided for in R.C.M. 918(a). But see Carroll, _
Insanity Defense Reform,_ 114 Mil. L. Rev. 183, 216 (1986).
Subsection
courts-martial. Paragraph 74 d(2) of MCM, 1969 (Rev.) suggested
that findings as to a specification and all lesser offenses included therein
would be resolved by a single ballot. Such an approach is awkward, however,
especially when there are multiple lesser included offenses. It is more appropriate
to allow separate consideration of each included offense until a finding
of guilty has been reached. See _Military Judges Benchbook,
_ DA Pam 27-9, para. 2.28 (May 1982).
Subsection
d_(2) of MCM, 1969 (Rev.). See also _United
States v. Dilday_, 47 C.M.R. 172 (A.C.M.R. 1973).
This subsection and the discussion are based on paragraphs 74 _
f_(1) and 74 g of MCM, 1969 (Rev.). _See
United States v. Justice_, 3 M.J. 451 (C.M.A. 1977); _United
States v. Ricketts_, 1 M.J. 78 (C.M.A. 1975); _ United States
of findings worksheets is encouraged. _See United States v. Henderson
_, 11 M.J. 395 (C.M.A. 1981); United States v. Barclay,
6 M.J. 785 (A.C.M.R. 1978), pet. denied, 7 M.J. 71 (1979).
_
1986 Amendment:_ The word "sentence" was changed to "findings"
to correct an error in MCM, 1984.
This subsection is based on Article 53 and on the first sentence
of paragraph 74 g of MCM, 1969 (Rev.). _See also
_ United States v. Dilday, 47 C.M.R. 172 (A.C.M.R.
1973). The discussion is based on United States v. Ricketts,
1 M.J. 78 (C.M.A. 1975); United States v. Stewart, 48 C.M.R.
877 (A.C.M.R. 1974). The requirement for the announcement to include a statement
of the percentage of members concurring in each finding of guilty and that
the vote was by secret written ballot has been deleted. Article 53 does not
require such an announcement and when instructions on such matters are given
(see R.C.M. 920(e)(6)), the members are "presumed
to have complied with the instructions given them by the judge," _
United States v. Ricketts_, supra at 82. _
See United States v. Jenkins_, 12 M.J. 222 (C.M.A. 1982). _
Cf._ United States v. Hendon, 6 M.J. 171, 173-174
(C.M.A. 1979).
This subsection is based on the second sentence of paragraph 74
g of MCM, 1969 (Rev.). The last sentence is based on the
last sentence of paragraph 70 b of MCM, 1969 (Rev.).
_
1986 Amendment:_ R.C.M. 922(b) was amended by adding a new paragraph
on findings a precondition to a capital sentencing proceeding. The Rule
and the Discussion also preclude use of the reconsideration procedure in
R.C.M. 924 to change a nonunanimous finding of guilty to a unanimous verdict
for purposes of authorizing a capital sentencing proceeding. Thus, if a
nonunanimous finding of guilty is reaffirmed on reconsideration and the vote
happens to be unanimous, the president of the court-martial does not make
a statement as to unanimity.
This subsection is based on the second sentence of the last paragraph
of paragraph 70 b and on the second paragraph of paragraph
74 g of MCM, 1969 (Rev.) See also Article
39(a).
This subsection is based on the third and fourth sentences of paragraph
74 g of MCM, 1969 (Rev.).
This subsection is based on the requirement in Article 51(a) for
voting by secret written ballot. This distinguishes military from civilian
practice (see, Fed. R. Crim. P. 31(d)). Mil. R. Evid. 606(b)
permits adequately broad questioning to ascertain whether a finding is subject
to impeachment due to extraneous factors. To permit general inquiry into
other matters, including actual votes of members, would be contrary to
Article 51(a) and Article 39(b). See United States v. Bishop,
11 M.J. 7 (C.M.A. 1981); United States v. West, 23 U.S.C.M.A.
77, 48 C.M.R. 548 (1974) (Duncan, C.J.); United States v. Nash,
5 U.S.C.M.A. 550, 555, 18 C.M.R. 174, 179 (1955) (Brosman, J. concurring); _
United States v. Connors_, 23 C.M.R. 636 (A.B.R. 1957); _
United States v. Tolbert_, 14 C.M.R. 613 (A.F.B.R. 1953). _
Contra_ Caldwell, Polling the Military Jury, 11 The
Advocate 53 (Mar- Apr, 1979); Feld, _A Manual for Courts-Martial
Practice and Appeal_ § 72 (1957). See also _
United States v. Hendon, supra._
This rule is based on United States v. Bishop,
11 M.J. 7 (C.M.A. 1981); United States v. West, 23 U.S.C.M.A.
77, 48 C.M.R. 548 (1974). See also _United States
_, 13 M.J. 210 (C.M.A. 1982), aff'd 16 M.J. 252
(1983); United States v. Hance, 10 M.J. 622 (A.C.M.R. 1980); _
United States v. Zinsmeister_, 48 C.M.R. 931, 935 (A.F.C.M.R.), _
pet. denied_, 23 U.S.C.M.A. 620 (1974); _United States v.
Perez-Pagan_, 47 C.M.R. 719 (A.C.M.R. 1973); _United States
As
to inconsistent findings, see Harris v. Rivera , 454 U.S.
339 (1981); Dunn v. United States, 284 U.S. 390 (1932); _
United States v. Gaeta_, 14 M.J. 383, 391 n. 10 (C.M.A. 1983); _
United States v. Ferguson_, 21 U.S.C.M.A. 200, 44 C.M.R. 254 (1972); _
United States v. Jules_, 15 C.M.R. 517 (A.B.R. 1954). _But
see United States v. Reid_, 12 U.S.C.M.A. 497, 31 C.M.R. 83 (1961); _
United States v. Butler_, 41 C.M.R. 620 (A.C.M.R. 1969).
The
rule is not intended to prevent a military judge from setting aside improper
findings. This would include improper findings of guilty of "mutually
exclusive" offenses, for example, larceny (as a perpetrator) of certain
property and receiving the same stolen property. In such a case, the members
should be instructed before they deliberate that they may convict of no more
than one of the two offenses. See Milanovich v. United States,
365 U.S. 551 (1961); United States v. Cartwright, 13 M.J.
174 (C.M.A. 1982); United States v. Clark, U.S.C.M.A. 140,
42 C.M.R. 332 (1970); United States v. Ford, 12 U.S.C.M.A.
3, 30 C.M.R. 3 (1960).
This subsection is based on Article 52(c) and on the fourth and
fifth sentences of paragraph 74 d(3) of MCM, 1969 (Rev.).
This subsection is based on Articles 52(a) and 53(c) and on the
last three sentences of paragraph 74 d(3) of MCM, 1969
(Rev.). See also United States v. Boland,
20 U.S.C.M.A. 83, 42 C.M.R. 275 (1970).
_1987 Amendment:
_ R.C.M. 924(b) was amended in conjunction with the adoption in R.C.M.
921(c)(4) of bifurcated voting on lack of mental responsibility. It is also
necessary to bifurcate the vote on reconsideration to retain the relative
burdens for reconsideration and to prevent prejudice to the accused.
This subsection is new to the Manual, although the power of the
military judge to reconsider findings of guilty has been recognized. _
United States v. Chatman_, 49 C.M.R. 319 (N.C.M.R. 1974). It is
also implicit in Article 16 which empowers the military judge sitting alone
to perform the functions of the members. See Article 52(c).
_
1995 Amendment:_ The amendment limits reconsideration of findings
by the members to findings reached in closed session but not yet announced
in open court and provides for the military judge, in judge alone cases,
to reconsider the "guilty finding" of a not guilty only by reason
of lack of mental responsibility finding.
Introduction. This rule is based on paragraph
75 of MCM, 1969 (Rev.). Additions, deletions, or modifications, other than
format or style changes, are noted in specific subsections _infra
_.
Sentencing procedures in Federal civilian courts can
be followed in courts-martial only to a limited degree. Sentencing in courts-martial
may be by the military judge or members. _ See_ Article 16
and 52(b). The military does not have-and it is not feasible to create-an
independent, judicially supervised probation service to prepare presentence
reports. See Fed. R. Crim. P. 32(c). This rule allows the
presentation of much of the same information to the court-martial as would
be contained in a presentence report, but it does so within the protections
of an adversarial proceeding, to which rules of evidence apply (_
but cf. Williams v. New York_, 337 U.S. 241 (1949)), although they
may be relaxed for some purposes. See subsections (b)(4)
and (5), (c)(3), (d), and (e) of this rule. The presentation of matters in
the accused's service records (see subsection (b)(2) of
this rule) provides much of the information which would be in a presentence
report. Such records are not prepared for purposes of prosecution (_
cf._ United States v. Boles, 11 M.J. 195 (C.M.A.
1981)) and are therefore impartial, like presentence reports. In addition,
the clarification of the types of cases in which aggravation evidence may
be introduced (see subsection (b)(4) of this rule) and
authorization for the trial counsel to present opinion evidence about the
accused's rehabilitative potential (see subsection (b)(5)
of this rule) provide additional avenues for presenting relevant information
to the court-martial. The accused retains the right to present matters in
extenuation and mitigation (see subsection (c) of this rule).
In
addition to Fed. R. Crim. P. 32(c), several other subsections in Fed. R.
Crim. P. 32 are inapplicable to courts-martial or are covered in other rules.
Fed. R. Crim. P. 32(a)(2) is covered in R.C.M. 1010. Fed. R. Crim. P. 32(b)(1)
is inapposite; parallel matters are covered in R.C.M. 1114. Fed. R. Crim.
P. 32(b)(2) is inapplicable as courts-martial lack power to adjudge criminal
forfeiture of property. Fed. R. Crim. P. 32(d) is covered in R.C.M. 910(h). _
See also_ Article 45(a). As to Fed. R. Crim. P. 32(e), _
see_ R.C.M. 1108.
Subsection (a)(3) is based on the third sentence of paragraph 53
h of MCM, 1969 (Rev.) and on the second sentence of Fed.
R. Crim. P. 32(a). _See also__Hill v. United States
_, 368 U.S. 424 (1962); Green v. United States,
365 U.S. 301 (1961). Subsection (a)(3) of paragraph 75 of MCM, 1969 (Rev.)
is deleted as the convening authority is no longer required to examine the
findings for factual sufficiency. Subsection (a)(2) is consistent with the
first sentence of Fed. R. Crim. P. 32(a). See Article
2015 Amendment: R.C.M. 1001(a)(1) was revised to implement Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113 66, 26 December 2013.
Subsections (3) and (4) are modifications of paragraph 75 _
b_(3) and (4) of MCM, 1969 (Rev.), and subsection (5) is new.
_
1986 Amendment:_ The word "age" in subsection (1) was
deleted to correct error in MCM, 1984.
The fourth sentence of
subsection (2) is modified by substituting "a particular document"
for "the information." This is intended to avoid the result
reached in United States v. Morgan, 15 M.J. 128 (C.M.A.
1983). For reasons discussed above, sentencing proceedings in courts-martial
are adversarial. Within the limits prescribed in the Manual, each side should
have the opportunity to present, or not present, evidence. _Morgan
_ encourages gamesmanship and may result in less information being
presented in some case because of the lack of opportunity to rebut.
_
1987 Amendment:_ The words "all those records" were changed
to "any records" to implement more clearly the drafters' original
intent. According to the paragraph just above, the drafters "intended
to avoid the result reached in United States v. Morgan," _
supra,_ by allowing the trial counsel to offer only such records
as he or she desired to offer. In Morgan, the court held
that, when the trial counsel offered adverse documents from the accused's
service record, the "rule of completeness" under Mil. R. Evid.
106 required that all documents from that record be offered.
Subsection
restriction applies to consideration of prior convictions at sentencing proceedings
in Federal civilian courts. There is no reason to forbid their consideration
by courts-martial, subject to Mil. R. Evid. 403.
Subsection (3)
also eliminates the requirement that a conviction be final before it may
be considered by the court-martial on sentencing. No similar restriction
applies in Federal civilian courts. This subsection parallels Mil. R. Evid.
without a military judge. See Analysis, Mil. R. Evid. 609.
Whether the adjudication of guilt in a civilian forum is a conviction will
depend on the law in that jurisdiction.
_1986 Amendment:
_ The reference to "Article 65(c)" was changed to "Article
64" to correct an error in MCM, 1984.
_2002 Amendment:
_ As previously written, R.C.M. 1001(b)(3)(A) offered little guidance
about what it meant by "civilian convictions." _See, e.g.,
United States v. White_, 47 M.J. 139, 140 (C.A.A.F. 1997); _
United States v. Barnes_, 33 M.J. 468, 472-73 (C.M.A. 1992); _
United States v. Slovacek_, 24 M.J. 140, 141 (CMA), _cert.
denied_, 484 U.S. 855 (1987). The present rule addresses this void
and intends to give the sentencing authority as much information as the military
judge determines is relevant in order to craft an appropriate sentence for
the accused.
Unlike most civilian courts, this rule does not allow
admission of more extensive criminal history information, such as arrests.
Use of such additional information is not appropriate in the military setting
where court-martial members, not a military judge, often decide the sentence.
Such information risks unnecessarily confusing the members.
The
present rule clarifies the term "conviction" in light of the
complex and varying ways civilian jurisdictions treat the subject. The military
judge may admit relevant evidence of civilian convictions without necessarily
being bound by the action, procedure, or nomenclature of civilian jurisdictions.
Examples of judicial determinations admissible as convictions under this
rule include accepted pleas of nolo contendere, pleas accepted
under North Carolina v. Alford, 400 U.S. 25 (1970), or deferred
sentences. If relevant, evidence of forfeiture of bail that results in a
judicial determination of guilt is also admissible, as recognized in _
United States v. Eady_, 35 M.J. 15, 16 (C.M.A. 1992). While no time
limit is placed upon the admissibility of prior convictions, the military
judge should conduct a balancing test to determine whether convictions older
than ten years should be admitted or excluded on the basis of relevance and
fundamental fairness.
The two central factors in this rule are
of guilt is an all-inclusive term meaning any act by the accused in a judicial
proceeding accepting, acknowledging, or admitting guilt. As long as either
factor is present, the "conviction" is admissible, if relevant.
Consequently, this rule departs from the holding in _United States
guilty in a Texas court, but the judge did not enter a finding of guilty
under state law allowing "deferred adjudications." Under the
present rule, the "conviction" would be admissible because the
accused pleaded guilty in a judicial proceeding, notwithstanding the fact
that the state judge did not enter a finding of guilty.
In contrast,
"deferred prosecutions," where there is neither an admission
of guilt in a judicial proceeding nor a finding of guilty, would be excluded.
The rule also excludes expunged convictions, juvenile adjudications, minor
traffic violations, foreign convictions, and tribal court convictions as
matters inappropriate for or unnecessarily confusing to courts-martial members.
What constitutes a 'minor traffic violation' within the meaning
of this rule is to be decided with reference only to federal law, and not
to the laws of individual states. See U.S. Sentencing Guidelines Manual Sec.
4A1.2(c)(2); "What Constitutes 'Minor Traffic Infraction'
Excludable From Calculation of Defendant's Criminal History under United
States Sentencing Guideline Sec. 4A1.2(c)(2)," 113 A.L.R. Fed. 561
(1993).
Additionally, because of the lack of clarity in the previous
rule, courts sometimes turned to Mil. R. Evid. 609 for guidance. _
See, e.g., Slovacek_, 24 M.J. at 141. We note that because the policies
behind Mil. R. Evid. 609 and the present rule differ greatly, a conviction
that may not be appropriate for impeachment purposes under Mil. R. Evid.
609, may nevertheless be admissible under the present rule.
The
Federal Sentencing Guidelines were consulted when drafting the present rule.
Although informed by those guidelines, the present rule departs from them
in many respects because of the wide differences between the courts-martial
process and practice in federal district court.
Subsection (4)
makes clear that evidence in aggravation may be introduced whether the accused
pleaded guilty or not guilty, and whether or not it would be admissible on
the merits. This is consistent with the interpretation of paragraph 75 _
b_(3) (later amended to be paragraph 75 b(4) of
MCM, 1969 (Rev.) by Exec. Order No. 12315 (July 29, 1981)) in _United
States v. Vickers_, 13 M.J. 403 (C.M.A. 1982). _See also
_ U.S. Dep't of Justice, Attorney General's Task Force on Violent
Crime, Final Report Recommendation 14 (1981); Fed. R. Crim. P. 32(c)(2)(B)
and (C). This subsection does not authorize introduction in general of evidence
of bad character or uncharged misconduct. The evidence must be of circumstances
directly relating to or resulting from an offense of which the accused has
been found guilty. See United States v. Rose, 6 M.J. 754
(N.C.M.R. 1978), pet. denied, 7 M.J. 56 (C.M.A. 1979); _
United States v. Taliaferro_, 2 M.J. 397 (A.C.M.R. 1975); _
United States v. Peace_, 49 C.M.R. 172 (A.C.M.R. 1974).
_
1999 Amendment:_ R.C.M. 1001(b)(4) was amended by elevating to the
Rule language that heretofore appeared in the Discussion to the Rule. The
Rule was further amended to recognize that evidence that the offense was
a hate crime may also be presented to the sentencing authority.
The additional hate crime language was derived in part from
section 3A1.1 of the Federal Sentencing Guidelines, in which hate crime
motivation results in an upward adjustment in the level of the offense for
which the defendant is sentenced. Courts-martial sentences are not awarded
upon the basis of guidelines, such as the Federal Sentencing Guidelines,
but rather upon broad considerations of the needs of the service and the
accused and on the premise that each sentence is individually tailored to
the offender and offense. The upward adjustment used in the Federal Sentencing
Guidelines does not directly translate to the court-martial presentencing
procedure. Therefore, in order to adapt this concept to the court-martial
process, this amendment was made to recognize that "hate crime" motivation
is admissible in the court-martial presentencing procedure. This amendment
also differs from the Federal Sentencing Guideline in that the amendment
does not specify the burden of proof required regarding evidence of "hate
crime" motivation. No burden of proof is customarily specified regarding
aggravating evidence admitted in the presentencing procedure, with the notable
exception of aggravating factors under R.C.M. 1004 in capital cases.
_
Subsection (5) is new._ (Paragraph 75b(5) of MCM, 1969 (Rev.) is
deleted here, as it is now covered in R.C.M. 701(a)(5). _ Cf._ Fed.
R. Crim. P. 32(c)(3).) Subsection (5) authorizes the trial counsel to present,
in the form of opinion testimony (see Mil. R. Evid., Section
VII), evidence of the accused's character as a servicemember and rehabilitative
potential. Note that inquiry into specific instances of conduct is not permitted
on direct examination, but may be made on cross-examination. Subsection (5)
will allow a more complete presentation of information about the accused
to the court-martial. The accused's character is in issue as part of the
sentencing decision, since the sentence must be tailored to the offender. _
Cf._ United States v. Lania, 9 M.J. 100 (C.M.A. 1980).
Therefore, introduction of evidence of this nature should not be contingent
solely upon the election of the defense. Information of a similar nature,
from the accused's employer or neighbors, is often included in civilian
presentencing reports. See, e.g., Fed. R. Crim. P. 32(c)(2).
Subsection (5) guards against unreliable information by guaranteeing that
the accused will have the right to confront and cross-examine such witnesses.
_
1994 Amendment:_ The amendment is based on decisional law interpreting
subsection (b)(5), including United States v. Pompey, 33
M.J. 266 (C.M.A. 1991), United States v. Claxton, 32 M.J.
159 (C.M.A. 1991), United States v. Aurich, 31 M.J. 95 (C.M.A.
1990), United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989),
and United States v. Horner, 22 M.J. 294 (C.M.A. 1986).
The language of subsection (2)(C) has been modified to clarify that
only a stipulation of fact permits nonproduction. _See United States
2007 Amendment: Subsection (e)(2)(D) was amended to allow the availability of various types of remote testimony to be a factor to consider in whether a pre-sentencing witness must be physically produced.
This subsection is based on the third and fourth sentences of paragraph
76 a(2) of MCM, 1969 (Rev.) and on the first sentence of
paragraph 123 of MCM 1969 (Rev.). The discussion is based on the last two
sentences of paragraph 123 of MCM, 1969 (Rev.).
The last paragraph is new. See Analysis, R.C.M.
919(c). As to the second sentence, see United States v. Grady,
15 M.J. 275 (C.M.A. 1983).
2015 Amendment: R.C.M. 1001A was added to implement Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, concerning the right of a victim to be reasonably heard at a sentencing hearing relating to the offense. It is consistent with the principles of law and federal practice prescribed in 18 U.S.C. § 3771(a)(4) and Federal Rule of Criminal Procedure 32(i)(4)(B), which requires the court to "address any victim of the crime who is present at sentencing" and "permit the victim to be reasonably heard." See 10 U.S.C. § 836(a). Additionally, the June 2014 report of the Response Systems to Adult Sexual Assault Crimes Panel (RSP) recommended that the President prescribe appropriate regulations to provide victims the right to make an unsworn victim impact statement, not subject to cross examination, during the presentencing proceeding. The RSP was a congressionally mandated panel tasked to conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses.
This rule is based on the first sentence in paragraph 76 _
a_(1) of MCM, 1969 (Rev.).
Introduction. This rule lists the punishments
a court-martial is authorized to impose, and presents general limitations
on punishments not provided in specific rules elsewhere. Limitations based
on jurisdiction (see R.C.M. 201(f)); rehearings, other
and new trials (see R.C.M. 810(d)); and on referral instructions
(see R.C.M. 601(e)(1)) are contained elsewhere, but are
referred to this rule. See subsection (c)(3) and discussion.
The maximum punishments for each offense are listed in Part IV. The automatic
suspension of limitations at paragraph of paragraph 127 c(5)
of MCM, 1969 (Rev.) is deleted since the maximum punishments now include
appropriate adjustments in the maximum authorized punishment in time of war
or under other circumstances.
This subsection provides express authority for adjudging any authorized
punishment in the case of any person tried by court-martial, subject only
to specific limitations prescribed elsewhere. It does not change current
law.
Subsections (1)(A) and (B) are based on paragraph 127 _ c
_(1) of MCM, 1969 (Rev.). Subsection (1)(C) is based on the first
3 sentences and the last sentence of paragraph 76 a(5) of
MCM, 1969 (Rev.). See Blockburger v. United States, 284
U.S. 299 (1932); _ United States v. Washington_, 1 M.J. 473
(C.M.A. 1976). See also Missouri v. Hunter,
459 U.S. 359 (1983); United States v. Baker, 14 M.J. 361
(C.M.A. 1983). The discussion prior to 2012 was based on paragraph 76 a(5)
of MCM, 1969 (Rev.). See 2012 Amendment below. The third and fourth paragraphs of the pre-2012 Discussion addressed tests for determining separate offenses and referred to the following cases: United States v. Stegall, 6 M.J. 176 (C.M.A. 1979); United States v. Harrison, 4 M.J. 332 (C.M.A. 1978); United States v. Irving, 3 M.J. 6 (C.M.A. 1977); United States v. Hughes, 1 M.J. 346 (C.M.A. 1976); United States v. Burney, 44 C.M.R. 125 (1971); United States v. Posnick, 24 C.M.R. 11 (1957). See MCM (2008 Edition) for pre-2012 Discussion.
_ 2015 Amendment_. This rule was amended because the language in previous editions of the Manual seemed to suggest that an accused could not be punished for offenses that were not separate. This is true only if there is no express statement from Congress indicating that an accused can be punished for two or more offenses that are not separate. See R.C.M. 907(b)(3) and related analysis. Subsections (i) and (ii) were added to distinguish between claims of multiplicity and unreasonable multiplication of charges. As the two concepts are distinct, it is important to address them in separate subsections. See R.C.M. 906(b)(12) for claims of unreasonable multiplication of charges and R.C.M. 907(b)(3)(B) for claims of multiplicity.
Additionally, the committee decided to move the discussion of the factors in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), from this rule to R.C.M. 906(b)(12) because the factors apply to unreasonable multiplication of charges as applied to findings as well as sentence. Because this Rule refers only to sentencing, it is more appropriate to address the military judge's determination of unreasonable multiplication in R.C.M. 906(b)(12), because that Rule covers both findings and sentence. See R.C.M. 906(b)(12) and related analysis.
The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed because it is no longer necessary, as the Rules themselves have been edited to remove any reference to "multiplicious for sentencing" and the discussion section of R.C.M. 906(b)(12) addresses the Quiroz factors.
Subsection (2)(A) is based on paragraph 126 d of MCM, 1969 (Rev.). Paragraph
127 a of MCM, 1969 (Rev.) provided that the maximum punishments
were "not binding" in cases of officers, but could "be
used as a guide." Read in conjunction with paragraph 126 _
d_ of MCM, 1969 (Rev.) these provisions had the practical effect
of prescribing no limits on forfeitures when the accused is an officer. This
distinction has now been deleted. The maximum limits on forfeitures are the
same for officers and enlisted persons.
Subsection (3) is based
on paragraph 127 b of MCM, 1969 (Rev.). It serves as a
reminder that the limits on punishments may be affected by other rules, which
are referred to in the discussion.
The last sentence in subsections
now be considered by the sentencing body whether or not it is final. Allowing
such a conviction to affect the maximum punishment may cause later problems,
however. The subsequent reversal of a conviction would seldom affect a sentence
of another court-martial where that conviction was merely a factor which
was considered, especially when the pendency of an appeal may also have been
considered. However, reversal would always affect the validity of any later
discharge or confinement for which it provided the basis.
_
1986 Amendment:_ Subsection (c)(3) was redesignated as subsection
(c)(4) and new subsection (c)(3) was added to reflect the legislative restrictions
placed upon punishment of reserve component personnel in certain circumstances
in the amendment to Article 2, UCMJ, contained in the "Military Justice
Amendments of 1986," tit. VIII, § 804, National Defense Authorization
Act for Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986).
Subsection (4) was created in 2010 and caused former subparagraph (4) to be renumbered as "(5) Based on other rules."
2010 Amendment. New subsection (4) limits the type of punishments a person serving with or accompanying the armed forces may receive.
This subsection is based on Section B of the Table of Maximum Punishments,
paragraph 127 c of MCM, 1969 (Rev.). See also _
United States v. Timmons_, 13 M.J. 431 (C.M.A. 1982). The last two
sentences in the discussion are based on United States v. Mack,
9 M.J. 300 (C.M.A. 1980); United States v. Booker, 5 M.J.
238 (C.M.A. 1977), _ vacated in part,_ 5 M.J. 246 (C.M.A.
1978). Cf. United States v. Cofield, 11
M.J. 422 (C.M.A. 1981).
1995 Amendment: Punishment
of confinement on bread and water or diminished rations (R.C.M. 1003(d)(9)),
as a punishment imposable by a court-martial, was deleted. Confinement on
bread and water or diminished rations was originally intended as an immediate,
remedial punishment. While this is still the case with nonjudicial punishment
(Article 15), it is not effective as a court-martial punishment. Subsections
(d)(10) through (d)(12) were redesignated (d)(9) through (d)(11), respectively.
Introduction. This rule is new. It provides
additional standards and procedures governing determination of a sentence
in capital cases. It is based on the President's authority under Articles
18, 36, and 56. See also U.S. Const. Art. II, sec. 2, cl.
This rule and the analysis were drafted before the Court of
Military Appeals issued its decision in _United States v. Matthews
_, 16 M.J. 354 (C.M.A. 1983) on October 11, 1983. There the court
reversed the sentence of death because of the absence of a requirement for
the members to specifically find aggravating circumstances on which the sentence
was based. When this rule was drafted, the procedures for capital cases were
the subject of litigation in _ Matthews_ and other cases. _
See e.g., United States v. Matthews_, 13 M.J. 501 (A.C.M.R. 1982), _
rev'd, United States v. Matthews, supra; United States v. Rojas_,
15 M.J. 902 (N.M.C.M.R. 1983). See also United States v. Gay,
16 M.J. 586 (A.F.C.M.R. 1982),a'ffd 18 M.J. 104 (1984) (decided
after draft MCM was circulated for comment). The rule was drafted in recognition
that, as a matter of policy, procedures for the sentence determination in
capital cases should be revised, regardless of the outcome of such litigation,
in order to better protect the rights of servicemembers.
While
the draft Manual was under review following public comment on it (_
see_ 48 Fed. Reg. 23688 (1983)), the _ Matthews_ decision
was issued. The holding in Matthews generated a necessity
to revise procedures in capital cases. However, _ Matthews_ did
not require substantive revision of the proposed R.C.M. 1004. The several
modifications made in the rule since it was circulated for comment were based
on suggestions from other sources. They are unrelated to any of the issues
involved in_ Matthews_.
Capital punishment is
not unconstitutional per se. Gregg v. Georgia, 428 U.S.
153 (1976); United States v. Matthews, supra. Capital punishment
does not violate Article 55. Compare Article 55 with Articles
85, 90, 94, 99-102, 104, 106, 110, 113, 118, and 120. _See United
States v. Matthews, supra._ But_ cf. Id._ at 382
(Fletcher, J., concurring in result) (absent additional procedural requirements,
sentence of death violated Article 55). The Supreme Court has established
that capital punishment does not violate the Eighth Amendment (U.S. Const.
amend. VIII) unless it: "makes no measurable contribution to acceptable
goals of punishment and hence is nothing more than a purposeless and needless
imposition of pain and suffering"; "is grossly out of proportion
to the crime" (Coker v. Georgia, 433 U.S. 584, 592
(1977)); or is adjudged under procedures which do not adequately protect
against the arbitrary or capricious exercise of discretion in determining
a sentence. Furman v. Georgia, 408 U.S. 238 (1972). _
Cf._ Barclay v. Florida, 463 U.S. 939 (1983); _
Zant v. Stephens,_ 462 U.S. 862 (1983); _Godfrey v. Georgia,
_ 446 U.S. 420 (1980); Jurek v. Texas, 428 U.S.
262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); _
Gregg v. Georgia, supra. See United States v. Matthews, supra._
Furthermore, while the procedures under which death may be adjudged must
adequately protect against the unrestrained exercise of discretion, they
may not completely foreclose discretion (at least in most cases, _
see_ subsection (e), infra) or the consideration
of extenuating or mitigating circumstances. _See Eddings v. Oklahoma
_, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S.
586 (1978); Roberts (Harry) v. Louisiana, 431 U.S. 633
(1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325
(1976); Woodson v. North Carolina, 428 U.S. 280 (1976).
In Matthews the Court of Military Appeals suggested that
similar considerations apply with respect to Article 55's prohibitions against
cruel and unusual punishment. United States v. Matthews, supra at
368-69, 379-80.
The Court of Military Appeals listed
several requirements for adjudication of the death penalty, based on Supreme
Court decisions: (1) a separate sentencing procedure must follow the finding
of guilt of a potential capital offense; (2) specific aggravating circumstances
must be identified to the sentencing authority; (3) the sentencing authority
must select and make findings on the particular aggravating circumstances
used as a basis for imposing the death sentence; (4) the defendant must have
an unrestricted opportunity to present mitigating and extenuating evidence;
and (5) mandatory appellate review must be required to consider the propriety
of the sentence as to the individual offense and individual defendant and
to compare the sentence to similar cases within the jurisdiction. _
See United States v. Matthews, supra_ at 369-77 and cases
cited therein.
The Supreme Court has not decided whether_
Furman v. Georgia, supra,_ and subsequent decisions concerning capital
punishment apply to courts-martial. See Schick v. Reed,
419 U.S. 256 (1974). But see Furman v. Georgia, supra at
412 (Blackmun, J., dissenting); id. at 417-18 (Powell,
J., dissenting). See generally Pfau and Milhizer, _
The Military Death Penalty and the Constitution: There is Life After Furman,
_ 97 Mil.L.Rev. 35 (1982); Pavlick, _The Constitutionality
of the UCMJ Death Penalty Provisions,_ 97 Mil.L.Rev. 81 (1982); Comment, _
The Death Penalty in Military Courts: Constitutionally Imposed?_ 30
UCLA L. Rev. 366 (1982); Dawson, _Is the Death Penalty in the Military
Cruel and Unusual?_ 31 JAG J. (Navy) 53 (1980); English, _
The Constitutionality of the Court-Martial Death Sentence,_ 21 A.F.L.
Rev. 552 (1979).
The Court of Military Appeals held in _
United States v. Matthews, supra_, that the requirements established
by the Supreme Court for civilian cases apply in courts-martial, at least
in the absence of circumstances calling for different rules, such as combat
conditions or wartime spying. United States v. Matthews, supra at
are constitutionally adequate in the following respects: (1) there is a separate
sentencing process in which the members are instructed by the military judge
as to their duties; (2) certain aggravating factors (e.g., premeditation)
must be found by the members during findings, and evidence of other aggravating
circumstances may be submitted during sentencing; (3) the accused has an
unlimited opportunity to present relevant evidence in extenuation and mitigation;
and (4) mandatory review is required by a Court of Military Review, and the
Court of Military Appeals, with further consideration by the President. _
United States v. Matthews, supra_ at 377-78. The court held
that the procedure is defective, however, in that the members are not required
to "specifically identify the aggravating factors upon which they
have relied in choosing to impose the death penalty," _ id._ at
379, at least with respect to a peacetime murder case. See id. at
The Court of Military Appeals stated in_Matthews_
that constitutionally adequate procedures for capital cases may be promulgated
by the President. Id. at 380-81. The President's unique
authority over military justice, particularly its procedure and punishments
is well established. _ See_ U.S. Const. Art. II, § 2,
of this Presidential authority. See Pub.L. No. 96-107, Title
VIII, § 801(b), 93 Stat. 811 (Nov. 9, 1979); S.Rep. No. 107, 96th Cong.,
1st Sess. 123-125 (1979); _Hearings on S.428 Before the Military
Personnel Subcomm. of the House Comm. on Armed Services,_ 96th Cong.,
1st Sess. 5-6, 14, 17-18, 20-21, 52, 106 (1979). _
See also_ United States v. Ezell, 6 M.J. 307, 316-17
(C.M.A. 1978); W. Winthrop, Military Law and Precedents 27-33
(2d ed. 1920 reprint). Cf. _Jurek v. Texas, supra
_ (judicial construction may save an otherwise defective death penalty
provision). The changes made in this rule are procedural. _See Dobbert
R.C.M. 1004 is based
on the recognition that, in courts-martial, as in civilian prosecution,
death should be adjudged only under carefully tailored procedures designed
to ensure that all relevant matters are thoroughly considered and that such
punishment is appropriate.
At the same time, R.C.M. 1004 rests
on the conclusion that the death penalty remains a necessary sanction in
courts-martial and that it is an appropriate punishment under a broader range
of circumstances than may be the case in civilian jurisdictions. This is
because of the unique purpose and organization of the military, and its composition
and the circumstances in which it operates. Cf. _
Parker v. Levy_, 417 U.S. 733 (1974). See also _
United States v. Matthews, supra_ at 368.
_1986
Amendment:_ The Rule was amended to substitute the word "factor"
for the word "circumstance" with respect to the aggravating factors
under R.C.M. 1004(c). This will more clearly distinguish such factors from
the aggravating circumstances applicable to any sentencing proceeding under
R.C.M. 1001(b)(4), which may be considered in the balancing process in capital
cases under R.C.M. 1004(b)(4)(B).
Subsection (1) is based on the code and reflects the first of two
"thresholds" before death may be adjudged; the accused must
have been found guilty of an offense for which death is authorized.
_
1986 Amendment:_ Subsection (2), referred to below in the original
Analysis, was redesignated as subsection (3), and a new subsection (2) was
added. The new subsection requires a unanimous verdict on findings before
the death penalty may be considered. Nothing in this provision changes existing
law under which a finding of guilty may be based upon a vote of two-thirds
of the members, and a finding based upon a two-thirds vote will continue
to provide the basis for sentencing proceedings in which any sentence other
than death may be imposed. This is an exercise of the President's powers
as commander-in-chief, and is not intended to cast doubt upon the validity
of the sentence in any capital case tried before the effective date of the
amendments.
Subsection (2) refers to the remaining tests in subsections
doubt, the existence of one or more aggravating circumstances listed in subsection
consider death. If the members reach this point, their sentencing deliberations
and procedures would be like those in any other case, except that the members
must apply an additional specific standard before they may adjudge death. _
See_ subsection (b)(3) of this rule.
This rule thus combines
two preliminary tests which must be met before death may be adjudged with
a standard which must be applied before death may be adjudged. _Cf.
_ Barclay v. Florida and _Zant v. Stephens,
both supra._ The Working Group considered the capital punishment
provisions of those states which now authorize capital punishment, as well
as the ALI Model Penal Code § 201.6(3), (4) (Tent.
Draft No. 9, 1959) (quoted at Gregg. v. Georgia, _
supra_ at 193 n.44). The ABA Standards do not include specific provisions
for capital punishment. _See ABA Standards, Sentencing Alternatives
and Procedures_ § 18-1.1 (1979). This rule is not
based on any specific state statue. It should be noted, however, that this
rule provides a greater measure of guidance for members than does the Georgia
procedure which has been upheld by the Supreme Court. In Georgia, once a
statutory aggravating factor has been proved, the statute leaves the decision
whether to adjudge death entirely to the jury. See Ga. Code
Ann. §§ 17-10-30, 17-10-31 (1982). (In
Georgia, once an aggravating factor has been proved, the burden may effectively
be on the defendant to show why death should not be adjudged. _See
Coker v. Georgia, supra_ at 590-91.) Subsection (b)(4)(B) of this
rule supplies a standard for that decision. Many state statutes adopt a
similar balancing test, although the specific standard to be applied varies. _
See e.g.,_ Ark. Stat. Ann. § 41-1302 (1977). _
Cf._ Barclay v. Florida, supra. _See also
_ Analysis, subsection (b)(4)(B), _ infra._
Subsection (1) is intended to avoid surprise and trial delays. _
Cf._ Ga. Code Ann. § 17-10 2(a)(1982). Consistent with
R.C.M. 701, its purpose is to put the defense on notice of issues in the
case. This permits thorough preparation, and makes possible early submission
of requests to produce witnesses or evidence. At the same time, this subsection
affords some latitude to the prosecution to provide later notice, recognizing
that the exigencies of proof may prevent early notice in some cases. This
is permissible as long as the defense is not harmed; ordinarily a continuance
or recess will prevent such prejudice.
2005 Amendment: Subsection (1)(A) is intended to provide early and definitive notice that the case has been referred for trial as a capital case. Subsection (1)(B) is intended to provide the defense written notice of the aggravating factors it intends to prove, yet afford some latitude to the prosecution to provide later notice, recognizing that the exigencies of proof may prevent early notice in some cases.
Subsection (2) makes clear that the
prosecution may introduce evidence in aggravation under R.C.M. 1001(b)(4).
Note that depositions are not admissible for this purpose. See Article
49(d).
Subsection (3) is based on _Eddings v. Oklahoma
_ and_ Lockett v. Ohio_, both_ supra,_ _
Cf._ Jurek v. Texas, supra. The accused in courts-martial
generally has broad latitude to introduce matters in extenuation and mitigation
(see R.C.M. 1001(c)) although the form in which they are
introduced may depend on several circumstances (see R.C.M.
1001(e)). This subsection reemphasizes that latitude. The rule is not intended
to strip the military judge of authority to control the proceedings. _
Eddings_ and Lockett should not be read so broadly
as to divest the military judge of the power to determine what is relevant
(see Mil. R. Evid. 401, 403) or so decide when a witness
must be produced (see R.C.M. 1001(e)). Those cases, and
this subsection, stand for the proposition that the defense may not be prevented
from presenting any relevant circumstances in extenuation or mitigation.
Subsection(4)(A)
establishes the second "threshold" which must be passed before
death may be adjudged. The requirement that at least one specific aggravating
circumstance be found beyond a reasonable doubt is common to many state statutory
schemes for capital punishment. See, e.g., Del. Code Ann.
tit. 11, § 4209(d)(1977); Ark. Stat. Ann. § 41-1302(1977);
Ill. Ann. Stat. Ch. 38, § 9-1(f) (Smith-Hurd 1979), La. Code
Crim. Proc. § 905.3 (West Supp 1982); Md. Ann. Code Art. 27 §
413(d)(1982); Ind. Code Ann. § 35-50-2-9(a)(Burns
1979). See generally United States v. Matthews, supra.
Subsection
(4)(B) establishes guidance for the members in determining whether to adjudge
death, once one or more aggravating factors have been found.
Note
that under this subsection any aggravating matter may be considered in determining
whether death or some other punishment is appropriate. Thus, while some factors
may alone not be sufficient to authorize death they may be relevant considerations
to weigh against extenuating or mitigating evidence. _See Barclay
_ R.C.M. 1001(b)(4).
The rule does not list extenuating
or mitigating circumstances as do some states. Some mitigating circumstances
are listed in R.C.M. 1001(c)(1) and (f)(1). See also R.C.M.
1001(f)(2)(B). No list of extenuating or mitigating circumstances can safely
be considered exhaustive. See Eddings v. Oklahoma and _
Lockett v. Ohio, both supra;_ cf.Jurek v. Texas, supra.
Moreover, in many cases, whether a matter is either extenuating or mitigating
depends on other factors. For example, the fact that the accused was under
the influence of alcohol or drugs at the time of the offense could be viewed
as an aggravating or an extenuating circumstance. Whether a matter is extenuating
or mitigating is to be determined by each member, unless the military judge
finds that a matter is extenuating or mitigating as a matter of law _
(see e.g.,_ R.C.M. 1001(c)(1) and (f)(1)) and so instructs the members.
In contrast to subsection (b)(4)(A) there is no requirement that the members
agree on all aggravating, extenuating, and mitigating circumstances under
subsection (4)(B) in order to adjudge death. Each member must be satisfied
that any aggravating circumstances, including those found under subsection
(4)(A) substantially outweigh any extenuating or mitigating circumstances,
before voting to adjudge death.
The test is not a mechanical
one. Cf. Zant v. Stephens, supra. The latitude
to introduce evidence in extenuation and mitigation, the requirement that
the military judge direct the members' attention to evidence in extenuating
and mitigation and instruct them that they must consider it, and the freedom
of each member to independently find and weigh extenuating and mitigating
circumstances all ensure that the members treat the accused "with that
degree of uniqueness of the individual" necessary in a capital case. _
See_ Lockett v. Ohio, supra at 605. Thus each member
may place on the scales any circumstance " [which in
fairness and mercy, may be considered as extenuating or reducing the degree]
of moral culpability or punishment." Coker v. Georgia, _
supra_ at 591 (1977) (quoting instructions by the trial judge). _
See also_ Witherspoon v. Illinois, 391 U.S. 510
attitude toward the death penalty).
1986 Amendment: The
following stylistic changes were made in R.C.M. 1004(b)(4): first, subparagraph
one factor under subsection (c); second, a new subparagraph (b) was added
to underscore the notice and unanimity requirements with respect to the aggravating
factors and to clarify that all members concur in the same factor or factors;
and third, former subparagraph (B) was redesignated as subparagraph (C),
with an express cross-reference to R.C.M. 1001(b)(4), the general rule governing
aggravating circumstances in sentencing proceedings.
Subsection
sentencing proceedings, may be considered in determining the sentence.
Subsection
the military judge would refer to those of which the trial counsel provided
notice. Even if such notice had been given, a failure to introduce some evidence
from which the members could find an aggravating circumstance would result
in no instruction being given on that circumstance. Cf. R.C.M.
917 The last sentence in this subsection is based on _Eddings v. Oklahoma
_ and Lockett v. Ohio, both_supra._
Subsection
finding of one or more aggravating circumstances is new, and is designed
to help ensure that death will not be adjudged in an inappropriate case.
Subsection (8) operates as a check on this procedure.
The lists of aggravating circumstances under the laws of the states
retaining capital punishment were examined and used as guidance for formulating
the aggravating circumstances listed here. Those jurisdictions do not include
certain military capital offenses, of course, such as desertion, mutiny,
misbehavior as a guard, nor do they address some of the unique concerns or
problems of military life. Therefore, several circumstances here are unique
to the military. These circumstances, which apply to rape and murder, except
as specifically noted, are based on the determination that death is not
grossly disproportionate for a capital offense under the code when such circumstances
exist, and that the death penalty contributes to accepted goals of punishment
in such cases. As to proportionality, the aggravating circumstances together
ensure that death will not be adjudged except in the most serious capital
offenses against other individuals or against the nation or the military
order which protects it. As to goals of punishment, in addition to specifically
preventing the most dangerous offenders from posing a continuing danger to
society, the aggravating circumstances recognize the role of general deterrence,
especially in combat setting. _See United States v. Matthews, supra
_ at 368,; United States v. Gay, supra at 605-06
(Hodgson, C.J., concurring).
In a combat setting, the potentiality
of the death penalty may be the only effective deterrent to offenses such
as disobedience, desertion, or misbehavior. The threat of even very lengthy
confinement may be insufficient to induce some persons to undergo the substantial
risk of death in combat. At the same time, the rule ensures that even a servicemember
convicted of such very serious offenses in wartime will not be sentenced
to death in the absence of one or more of the aggravating circumstances.
In
some cases proof of the offense will also prove an aggravating circumstance. _
See e.g.,_ Article 99 and subsection(c)(1) of this rule. Note, however,
that the members would have to return a specific finding under this rule
of such an aggravating circumstance before a sentence of death could be based
on it. This ensures a unanimous finding as to that circumstance. A finding
of not guilty does not ensure such unanimity. _ See_ Article
52(a)(2); United States v. Matthews, supra at 379-80; _
United States v. Gay, supra_ at 600. The prosecution is not precluded
from presenting evidence of additional aggravating circumstances.
Subsection
in the presence of the enemy. "Before or in the presence of the enemy"
is defined in paragraph 23, Part IV. Note that one may be "before or
in the presence of the enemy" even when in friendly territory. This
distinguishes this subsection from subsection (6).
Subsection
That this interest may be basis for the death penalty is well established. _
See e.g., United States v. Rosenberg_, 195 F.2d 583 (2d Cir. 1952), _
cert. denied_, 344 U.S. 838 (1952). The definition of national security,
which appears at the end of subsection (c), is based on Exec. Order No. 12065
§ 6-104 (June 28, 1978), 43 Fed.Reg. 28949, as amended by Exec.
Order No. 12148 (July 19, 1979), 44 Fed.Reg. 43239, and Exec. Order No. 12163
(Sept. 29, 1979), 44 Fed.Reg. 56673, reprinted at 50 U.S.C.A.
§ 401 (West Supp 1982). The second ("includes") phrase is
based on Joint Chiefs of Staff Publication 1. Dictionary of Military and
Associated Terms 228 (1 July 79). Note that not all harm to national security
will authorize death. Virtually all military activities affect national security
in some way. _ Cf._ Cole v. Young, 351 U.S.
536 (1956); United States v. Trottier, 9 M.J. 337 (C.M.A.
1980). Substantial damage is required to authorize death. The discussion
provides examples of substantial damage. Rape and murder may be aggravated
under subsection (2) because the offender intended to harm national security
or a mission, system, or function affecting national security, by the capital
offense. Intent to harm the mission, system, or function will suffice. It
must be shown, however, that regardless of whether the accused intended to
affect national security, the mission, system, or function must have been
such that had the intended damage been effected, substantial damage to national
security would have resulted.
1986 Amendment: R.C.M.
1004(c)(2) was changed in conjunction with the enactment of the new Article
106 a.
Subsection (4) is similar to an aggravating
circumstance in many states. See, e.g., Neb. Rev. Stat.
§ 29-2523(1)(f)(1979); Miss. Code. Ann. § 99-19-101(5)(c)(1981
Supp.); Ga. Code Ann. § 17-10-30(b)(1982). This circumstance
applies to all capital offenses (except rape) under the code; rape is excluded
based on_Coker v. Georgia, supra._
_1986
Amendment:_ R.C.M. 1004(c)(4) was amended by adding a reference to
Article 106a to distinguish this factor from the new aggravating factor in
R.C.M. 1004(c)(12). It was also considered appropriate to exclude 104 from
this aggravating factor. _ See_ R.C.M. 1004(c)(11).
_
1994 Amendment:_ R.C.M. 1004(c)(4) was amended to clarify that only
one person other than the victim need be endangered by the inherently dangerous
act to qualify as an aggravating factor. _See United States v. Berg
_, 31 M.J. 38 (C.M.A. 1990); United States v. McMonagle,
38 M.J. 53 (C.M.A. 1993).
Subsection (5) reflects the special
need to deter the offender who would desert or commit any other capital
offense to avoid hazardous duty. Moreover, the effect such conduct has on
the safety of others (including the offender's replacement) and the success
of the mission justified authorizing death. Note that this circumstance applies
to all capital offenses, including rape and murder. The person who murders
or rapes in order to avoid hazardous duty is hardly less culpable than one
who "only" runs away.
Subsection (6) is based on the
special needs and unique difficulties for maintaining discipline in combat
zones and occupied territories. History has demonstrated that in such an
environment rape and murder become more tempting. At the same time the need
for order in the force, in order not to encourage resistance by the enemy
and to pacify the populace, dictates that the sanctions for such offenses
be severe. Once again, in a combat environment, confinement, even of a prolonged
nature, may be an inadequate deterrent.
Subsections (7) and (8)
are based generally on examination of the aggravating circumstances for murder
in various states. Subsection (7)(A) is intended to apply whether the sentence
is adjudged, approved, or ordered executed, as long as, at the time of the
offense, the term of confinement is at least 30 years or for life. The possibility
of parole or early release because of "good time" or similar
reasons does not affect the determination. Subsection (7)(F) is based on
18 U.S.C. §§ 351, 1114, and 11751. Subsection (7)(G) is modified
to include certain categories of military persons. Subsection (7)(1) uses
a more objective standard that the Georgia provision found wanting in _
Godfrey v. Georgia, supra._
1994 Amendment: Subsection
(7)(B) was amended by adding an additional aggravating factor for premeditated
murder--the fact that the murder was drug-related. This change reflects
a growing awareness of the fact that the business of trafficking in controlled
substances has become increasingly deadly in recent years. Current federal
statutes provide for a maximum punishment including the death penalty for
certain drug-related killings. See 21 U.S.C. § 848(e)
(Pub. L. 100-690, §7001(a)(2)).
2015 Amendment. Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, which superseded the previous paragraph 45, "Rape, sexual assault and other sexual misconduct", in its entirety and replaces paragraph 45 with "Rape and sexual assault generally." In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, "Rape and sexual assault of a child", and paragraph 45c, "Other sexual misconduct."
_1986 Amendment:
_ Three changes were made in R.C.M. 1004(c)(7)(F); first, the provision
involving Members of Congress was expanded to include Delegates and Resident
commissioners; second, the word "justice" was added to ensure
that justices of the Supreme Court were covered; and third, the provision
was extended to include foreign leaders in specified circumstances. These
changes are similar to legislation approved by the Senate in S. 1765, 98th
Cong., 1st Sess. (1983).
1994 Amendment: The
amendment to subsection (c)(7)(I) of this rule defines "substantial
physical harm" and was added to clarify the type of injury that would
qualify as an aggravating factor under the subsection. The definition of
"substantial physical harm" is synonymous with "great bodily
harm" and "grievous bodily harm". See Part
IV, paragraph 43(c). With respect to the term "substantial mental
or physical pain and suffering", _see United States v. Murphy
_, 30 M.J. 1040, 1056-1058 (ACMR 1990).
_1999
Amendment:_ R.C.M. 1004(c)(7)(K) was added to afford greater protection
to victims who are especially vulnerable due to their age.
1991 Amendment: Subsection (c)(8) was based on the Supreme Court's
decision in Enmund v. Florida, 458 U.S. 782, 797 (1982),
that the cruel and unusual punishment clause of the Eighth Amendment prohibits
imposition of the death penalty on a defendant convicted of felony-murder
[who] d[id] not himself kill, attempt
to kill, or intend that a killing take place or that lethal force ... be
employed. The amendment to subsection (c)(8) is based on the Supreme Court's
decision in Tison v. Arizona, 481 U.S. 137 (1987) distinguishing _
Enmund_. In Tison, the Court held that the _
Enmund_ culpability requirement is satisfied when a defendant convicted
of felony-murder was a major participant in the felony committed and manifested
a reckless indifference to human life.
2015 Amendment. Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, which superseded the previous paragraph 45, "Rape, sexual assault and other sexual misconduct," in its entirety and replaces paragraph 45 with "Rape and sexual assault generally." In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, "Rape and sexual assault of a child," and paragraph 45c, "Other sexual misconduct."
Subsection (9) is based
on the holding in Coker v. Georgia, supra, that the death
penalty is unconstitutional for the rape of an adult woman, at least where
she is not otherwise harmed.
Subsection (10) is based on Article
Military Tribunal_ (International Military Tribunal, Nurenberg, 1974); _
Trials of War Criminals Before the Nurenberg Military Tribunals,_ (U.S.
Gov't Printing Off., 1950-51); In re Yamashita, 327
U.S. 1 (1946).
1986 Amendment: R.C.M. 1004(c)(11)
was added to implement the statutory aggravating factors found in new Article
106 _ a_. The aggravating factors in R.C.M. 1004(c)(11) were
also considered appropriate for violations of Article 104. It is intended
that the phrase "imprisonment for life was authorized by statute"
in Article 106 a(c)(1) include offenses for which the President
has authorized confinement for life in this Manual as authorized in Articles
18 and 55 (10 U.S.C. §§ 818 and 855).
2007 Amendment: Changes to this paragraph adding sexual offenses other than rape are based on subsection (d) of section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.
This subsection is based on Article 106. Congress recognized that
in case of spying, no separate sentencing determination is required. _
See_ Article 52(a)(1). The rule provides for sentencing proceedings
to take place, so that reviewing authorities will have the benefit of any
additional relevant information.
The Supreme Court has held a
mandatory death penalty to be unconstitutional for murder. _Woodson
has not held that a mandatory death penalty is unconstitutional for any offense. _
See Roberts (Harry) v. Louisiana, supra_ at 637 n. 5.
In
holding a mandatory death sentence for murder to be unconstitutional, the
plurality in Woodson emphasized that the prevailing view
before Furman v. Georgia, supra, was decidedly against
mandatory death for murder. Contrarily, death has consistently been the
sole penalty for spying in wartime since 1806. See W. Winthrop, _
Military Law and Precedents_ 765-66 (2d ed. 1920 reprint).
Before 1920 the statue making spying in time of war triable by court-martial
and punishable by death was not part of the Articles of War. _Id.
See_ A.W. 82 (Act of 4 June 1920, Ch. 227, 41 Stat. 804).
The second sentence of this subsection is based on the second sentence
of the third paragraph of paragraph 126 a of MCM, 1969
(Rev.), which was in turn based on JAGA 1946/10582; SPJGA 1945/9511; _
United States v. Brewster_, CM 238138, 24 B.R. 173 (1943). As to
the third sentence of this subsection,_see also United States v. Bigger
, 2 U.S.C.M.A. 297, 8 C.M.R. 97 (1953); W. Winthrop, supra
_ at 428, 434.
2002 Amendment: This change
resulted from the enactment of Article 56a, UCMJ, in section 581 of the National
Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat.
1629, 1759 (1997).
Introduction. Except as noted below, this
rule and the discussion are taken from paragraph 76 b(1)
of MCM, 1969 (Rev.).
Regarding the discussion _see generally United States v.
Mamaluy_, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 180-81 (1959).
See also United States v. Lania, 9 M.J.
100 (C.M.A. 1980)(use of general deterrence); _United States v. Smalls
_, 6 M.J. 346 (C.M.A. 1979); United States v. Slaton,
6 M.J. 254 (C.M.A. 1979) (mental impairment as matter in mitigation); _
United States v. Keith_, 22 U.S.C.M.A. 59, 46 C.M.R. 59 (1972) (recommendation
for clemency); United States v. Condon, 42 C.M.R. 421 (A.C.M.R.
_, 41 C.M.R. 915 A.F.C.M.R. 1969) (Vietnam service).
See Fed. R. Crim. P. 30 and paragraph 74 _
e_ of MCM, 1969 (Rev.).
See Fed. R. Crim. P. 30 and_United States
is based on Fed. R. Crim. P. 30 and paragraph 73 d of MCM,
1969 (Rev.).
See Analysis, R.C.M. 921(d).
The reference in the fourth sentence of the discussion of subsection
d_(1) of MCM, 1969 (Rev.). The second sentence of the first paragraph
and the second paragraph of the discussion to (1) are based on _United
States v. Henderson_, 11 M.J. 395 (C.M.A. 1981). The last clause
of subsection (3) is based on United States v. Givens, 11
M.J. 694, 696 (N.M.C.M.R. 1981). The discussion under subsection (4) is
based on the third sentence of paragraph 76 b(1) of MCM,
1969 (Rev.) and on_United States v. Davidson_, 14 M.J. 81
(C.M.A. 1982).
1998 Amendment: The requirement
to instruct members on the effect a sentence including a punitive discharge
and confinement, or confinement exceeding six months, may have on adjudged
forfeitures was made necessary by the creation of Article 58b, UCMJ, in section
1122, National Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
104-106, 110 Stat. 186, 463 (1996).
This subsection is based on Fed. R. Crim. P. 30.
Introduction. Except as noted below, this
rule and the discussion are based on Articles 51 and 52 and on paragraphs
76 _ b_(2) and (3) of MCM, 1969 (Rev.).
The first sentence is based on the first sentence of paragraph 76
b(1) of MCM, 1969 (Rev.).
See Analysis, R.C.M. 921(b) concerning the second,
third, and fourth sentences of this subsection. See also _
United States v. Lampani_, 14 M.J. 22 (C.M.A. 1982).
The second clause of the second sentence of this subsection is new
and recognizes the unitary sentence concept. _See United States v.
Gutierrez_, 11 M.J. 122, 123 (C.M.A.1981). _See generally
Jackson v. Taylor_, 353 U.S. 569 (1957).
_2002
Amendment:_ This change to the discussion resulted from the enactment
of Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759 (1997).
As to subsection (3)(A) see United States v. Hendon,
6 M.J. 171, 172-73 (C.M.A. 1979); United States v. Cates,
39 C.M.R. 474 (A.B.R. 1968).
2002 Amendment: Subsection
(d)(4)(B) was amended as a result of the enactment of Article 56a, UCMJ,
in section 581 of the National Defense Authorization Act for Fiscal Year
1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759 (1997).
As to
subsection (d)(5), the second sentence of the third paragraph of paragraph
76 b(2) of MCM, 1969 (Rev.) has been limited to Article
118 offenses because, unlike Article 106, findings on an Article 118 offense
do not automatically determine the sentence and do not require a unanimous
vote. See Articles 52(a)(1) and (2). Thus a separate vote
on sentence for an Article 105 offense is unnecessary.
As to
subsection (d)(6) see United States v. Jones , 14 U.S.C.M.A.
177, 33 C.M.R. 389 (1963). The reference to no punishment was added to recognize
this added alternative.
See United States v. Justice, 3 M.J. 451, 453
(C.M.A. 1977). The second paragraph of the discussion is based on the second
sentence of paragraph 76 c.
Introduction. Except as noted below, this rule
and the discussion are based on paragraph 76 c of MCM, 1969
(Rev.).
The discussion is based on United States v. Henderson ,
11 M.J. 395 (C.M.A. 1981); United States v. Crawford, 12
U.S.C.M.A. 203, 30 C.M.R. 203 (1961).
The requirement that the
sentence announcement include a reference to the percentage of agreement
or an affirmation that voting was by secret written ballot has been deleted.
Article 53 does not require such an announcement, and when instructions incorporating
such matters are given, the court-martial "is presumed to have complied
with the instructions given them by the judge." _United States
Ricketts_, 1 M.J.. 78, 82 (C.M.A. 1975). _See United States
Jenkins_, 12 M.J. 222 (C.M.A. 1982). Cf. _
United States v. Hendon_, 6 M.J. 171, 173-74 (C.M.A. 1979).
See Analysis, Rule 923(e).
This rule is based on Mil. R. Evid. 606(b) and _United
States v. West_, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974). _
See United States v. Bishop_, 11 M.J. 7 (C.M.A. 1981).
Introduction. Except as noted below, this
rule and discussion are based on Articles 52(c) and 62 and paragraphs 76 _
c_ and d of MCM, 1969 (Rev.).
Subsection (2)(A) was added to remedy the situation addressed in
United States v. Taylor, 9 M.J. 848 (N.C.M.R. 1980). It
is intended that the military judge have the authority to reduce a sentence
imposed by that judge based on changed circumstances, as long as the case
remained under that judge's jurisdiction. Since this action "undercuts
the review powers" (Id. at 850) only to the extent
that it reduces the upper limits available to reviewing authorities, there
is no reason to prevent the military judge from considering additional matters
before finalizing the sentence with authentication. Furthermore, granting
the military judge power to reconsider an announced sentence recognizes that
when sitting without members, the judge performs the same functions as the
members. See Article 16.
The procedures in subsection
(2)(B) are necessary corollaries of those set out in the fifth and sixth
sentences of paragraph 76 _ c_, MCM, 1969 (Rev.) adapted to
the rules for reconsideration. This clarifies that a formal vote to reconsider
is necessary when reconsideration is initiated by the military judge. MCM,
1969 (Rev.) was unclear in this regard. _See United States v. King,
_ 13 M.J. 838 (A.C.M.R.), _ pet. denied,_ 14 M.J.
232 (1982).
Subsection (3) is based on Article 62(b) and_
United States v. Jones_, 3 M.J. 348 (C.M.A. 1977).
Subsection (1) is based on the general requirement for instructions
on voting procedure. See United States v. Johnson, 18 U.S.C.M.A.
436, 40 C.M.R. 148 (1969). It applies whether reconsideration is initiated
by the military judge or a member, since R.C.M. 1006(d)(3)(A) does not permit
further voting after a sentence is adopted and there is no authority for
the military judge to suspend that provision.
_1995 Amendment:
_ This rule was changed to prevent a sentencing authority from reconsidering
a sentence announced in open session. Subsection (b) was amended to allow
reconsideration if the sentence was less than the mandatory maximum prescribed
for the offense or the sentence exceeds the maximum permissible punishment
for the offense or the jurisdictional limitation of the court-martial. Subsection
that is ambiguous. Subsection (d) provides for the convening authority to
exercise discretionary authority to return an ambiguous sentence for clarification,
or take action consistent with R.C.M. 1107.
_2002 Amendment:
_ Subsection (e)(3)(B)(ii) was amended as a result of the enactment
of Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759 (1997).
This rule is based on S.Rep. No. 53, 98th Cong., 1st Sess. 18 (1983).
See also Articles 60, 61, 64, 66, 67, and 69. It is similar
to Fed. R. Crim. P. 32(a)(2), but is broader in that it applies whether or
not the accused pleaded guilty. This is because the accused's post-trial
and appellate rights are the same, regardless of the pleas, and because the
powers of the convening authority and the Court of Criminal Appeals to reduce
the sentence are important even if the accused has pleaded guilty.
_
1986 Amendment:_ This rule was changed to delete subsection(b) which
required an inquiry by the military judge. The Senate Report addresses only
advice; inquiry to determine the accused's understanding is deemed unnecessary
in view of the defense counsel's responsibility in this area.
_
1991 Amendment:_ This rule was changed to place the responsibility
for informing the accused of post-trial and appellate rights on the defense
counsel rather than the military judge. Counsel is better suited to give
this advisement in an atmosphere in which the accused is more likely to comprehend
the complexities of the rights.
This rule is based on paragraph 77 b of MCM,
1969 (Rev.).
This subsection is based on the first two sentences of paragraph
44 e of MCM, 1969 (Rev.).
Subsection (1) is based on Article 57(b) and on the last sentence
of paragraph 44 e of MCM, 1969 (Rev.). Subsection (1) makes
clear that confinement is authorized when death is adjudged, even if confinement
is not also adjudged. See United States v. Matthews, 13
M.J. 501 (A.C.M.R.), rev'd on other grounds, 16 M.J. 354
(C.M.A. 1983). See also R.C.M. 1004(e) and Analysis.
Subsection
1969 (Rev.). The person who orders the accused into confinement need not
be the convening authority. See Reed v. Ohman, 19 U.S.C.M.A.
110, 41 C.M.R. 110 (1969); Levy v. Resor, 17 U.S.C.M.A.
135, 37 C.M.R. 399 (1967). The convening authority may withhold such authority
from subordinates.
Article 57(b) provides that a sentence to confinement
begins to run as soon as the sentence is adjudged. The mechanism for an accused
to seek release from confinement pending appellate review is to request deferment
of confinement under Article 57(d). See S.Rep. No. 1601,
90th Cong., 2d Sess. 13-14 (1968); Pearson v. Cox, 10 M.J.
317 (C.M.A. 1981). See subsection (c) of this rule.
The
purpose of subsection (2) is to provide a prompt, convenient means for the
command to exercise its prerogative whether to confine an accused when the
sentence of the court-martial authorizes it. The commander may decide that,
despite the sentence of the court-martial, the accused should not be immediately
confined because of operational requirements or other reasons. A decision
not to confine is for the convenience of the command and does not constitute
deferment of confinement. See Article 57(d). An accused
dissatisfied with the decision of the commander may request deferment in
accordance with subsection (c) of this rule.
The first sentence
of the second paragraph of paragraph 20 _ d_(1) of MCM, 1969
(Rev.) has been deleted. That sentence provided for post-trial "arrest,
restriction, or confinement to insure the presence of an accused for impending
execution of a punitive discharge." The authority for such restraint
was based on Article 13 which authorized arrest or confinement for persons
awaiting the result of trial. _See Reed v. Ohman, supra; United States
Amendments of 1981 Pub. L. No. 97-81, § 3, 95 Stat. 1087
(1981), deleted the language concerning such detention pending the result
of trial.
Subsection (1) is based on the first sentence of paragraph 88 _
f_ of MCM, 1969 (Rev.). The discussion is based on the second and
third sentences of paragraph 88 f of MCM, 1969 (Rev.).
Subsection
of paragraph 88_f_ of MCM, 1969 (Rev.). The requirement that
the request be written is based on the third paragraph of paragraph 88 _
f_ of MCM, 1969 (Rev.).
Subsection (3) is based on Article
57(d) and United States v. Brownd, 6 M.J. 338 (C.M.A. 1978). _
See also ABA Standards, Criminal Appeals,_ § 21-2.5
(1978); Trotman v. Haebel, 12 M.J. 27 (C.M.A. 1981); _
Pearson v. Cox, supra; Stokes v. United States,_ 8 M.J. 819 (A.F.C.M.R.
1979), pet. denied, 9 M.J. 33 (1980). See also the
first paragraph of paragraph 88 f of MCM, 1969 (Rev.). The
penultimate sentence recognized the standard of review exercised by the Courts
of Criminal Appeals, the Court of Appeals for the Armed Forces, and other
reviewing authorities. See United States v. Brownd, supra.
Because the decision to deny a request for deferment is subject to judicial
review, the basis for denial should be included in the record.
Subsection
MCM, 1969 (Rev.).
Subsection (5) is based on the fifth paragraph
of paragraph 88 f of MCM, 1969 (Rev.) and on _Pearson
Subsection (6) modifies the last two paragraphs
of paragraph 88 f of MCM, 1969 (Rev.) to conform to the
amendment of Article 71(c), see Pub. L. No. 98-209,
§ 5(e), 97 Stat. 1393 (1983). The amendment of Article 71(c)
permits confinement to be ordered executed in the convening authority's initial
action in all cases. Article 57(d) is intended to permit deferment after
this point, however. See S. Rep. No. 1601, 90th Cong., 2d
Sess. 13-14 (1968). Therefore subsection (6) specifically describes
four ways in which deferment may be terminated. The result is consistent
with paragraph 88 f of MCM, 1969 (Rev.) and with _
Collier v. United States,_ 19 U.S.C.M.A. 511, 42 C.M.R. 113 (1970).
Under subsection (A) the convening authority must specify in the initial
action whether approved confinement is ordered executed, suspended, or deferred. _
See_ R.C.M. 1107(f)(4)(B), (E). Under subsection (B), deferment may
be terminated at any time by suspending the confinement. This is because
suspension is more favorable to the accused than deferment. Subsections (C)
and (D) provide other specific points at which deferment may be terminated.
Deferment may be granted for a specified period (e.g., to permit the accused
to take care of personal matters), or for an indefinite period (e.g., completion
of appellate review). Even if confinement is deferred for an indefinite period,
it may be rescinded under subsection (D). When deferment is terminated after
the initial action, it will be either suspended or executed. _See
_ subsection (7). The first sentence in the discussion is based on
Article 57(d). The second, third, and fourth sentences are based on the last
two paragraphs of paragraph 88 f of MCM, 1969 (Rev.).
Subsection
rescission is based need not be new information, but only information which
was not earlier presented to the authority granting deferment. _Cf.
Collier v. United States, supra._ Note also that the deferment may
be rescinded and the accused confined before the accused has an opportunity
to submit matters to the rescinding authority. _See United States
Subsection
(7)(C) is added based on the amendment of Article 71(c). Confinement after
the initial action is not "served." It is deferred, suspended,
or executed. Therefore, after deferment is rescinded, it is ordered executed
(if not suspended). Subsection (7)(C) permits the accused an opportunity
to submit matters before the order of execution, which precludes deferment
under Article 57(d), is issued.
1991 Amendment: The
Discussion accompanying this subsection was amended to provide for the inclusion
of the written basis for any denial of deferment in the record of trial.
Although written reasons for denials are not mandatory, and their absence
from the record of trial will not per se invalidate a denial decision, their
use is strongly encouraged. _ See Longhofer v. Hilbert_, 23
M.J. 755 (A.C.M.R. 1986).
1998 Amendment: In
enacting section 1121 of the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 462, 464 (1996), Congress
amended Article 57(a) to make forfeitures of pay and allowances and reductions
in grade effective either 14 days after being adjudged by a court-martial,
or when the convening authority takes action in the case, whichever was earlier
in time. Until this change, any forfeiture or reduction in grade adjudged
by the court did not take effect until convening authority action, which
meant the accused often retained the privileges of his or her rank and pay
for up to several months. The intent of the amendment of Article 57(a) was
to change this situation so that the desired punitive and rehabilitative
impact on the accused occurred more quickly.
Congress, however,
desired that a deserving accused be permitted to request a deferment of any
adjudged forfeitures or reduction in grade, so that a convening authority,
in appropriate situations, might mitigate the effect of Article 57(a).
This
change to R.C.M. 1101 is in addition to the change to R.C.M. 1203. The latter
implements Congress' creation of Article 57(a), giving the Service Secretary
concerned the authority to defer a sentence to confinement pending review
under Article 67(a)(2).
for dependent support.
1998 Amendment: This new subsection implements
Article 58b, UCMJ, created by section 1122, National Defense Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 463 (1996).
This article permits the convening authority (or other person acting under
Article 60) to waive any or all of the forfeiture of pay and allowances forfeited
by operation of Article 58b(a) for a period not to exceed six months. The
purpose of such waiver is to provide support to some or all of the accused's
dependent(s) when circumstances warrant. The convening authority directs
the waiver and identifies those dependent(s) who shall receive the payment(s).
Introduction. This rule is based on Article
60(e) and on paragraphs 80 c and 86 d of
MCM, 1969 (Rev.), all of which concern proceedings in revision. This rule
also expressly authorizes post-trial Article 39(a) sessions to address matters
not subject to proceedings in revision which may affect legality of findings
of guilty or the sentence. See United States v. Mead, 16
M.J. 270 (C.M.A. 1983); United States v. Brickey, 16 M.J.
258 (C.M.A. 1983); _ United States v. Witherspoon_, 16 M.J.
252 (C.M.A. 1983). _ Cf._ United States v. DuBay,
17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
This subsection is based on Article 60(e), on the first sentence
of paragraph 80 c of MCM, 1969 (Rev.), which indicated that
a court-martial could conduct proceedings in revision on its own motion,
and on paragraph 86 d of MCM, 1969 (Rev.).
Subsection (1) is based on the second sentence of paragraph 86 _
d_ of MCM, 1969 (Rev.). The discussion of subsection (1) is based
on the last paragraph of paragraph 80 d of MCM, 1969 (Rev.)
and on United States v. Steck, 10 M.J. 412 (C.M.A. 1981); _
United States v. Barnes_, 21 U.S.C.M.A. 169, 44 C.M.R. 223 (1972);
United States v. Hollis, 11 U.S.C.M.A. 235, 29 C.M.R. 51
(1960). As to subsection (2), see the _ Introduction,
_ Analysis, this rule. The discussion of subsection 21 is based on _
United States v. Anderson, supra._
_1994 Amendment:
_ The amendment to subsection (b)(2) of this rule clarifies that
Article 39(a), UCMJ, authorizes the military judge to take such action after
trial and before authenticating the record of trial as may be required in
the interest of justice. See United States v. Griffith,
27 M.J. 42, 47 (C.M.A. 1988). The amendment to the Discussion clarifies
that the military judge may take remedial action on behalf of an accused
without waiting for an order from an appellate court. Under this subsection,
the military judge may consider, among other things, misleading instructions,
legal sufficiency of the evidence, or errors involving the misconduct of
members, witnesses, or counsel. Id.; See United States v. Scaff,
29 M.J. 60, 65 (C.M.A. 1989).
This subsection is taken from Article 60(e)(2).
This subsection is based on paragraph 86 d of MCM,
1969 (Rev.). See also Article 60(e); _United States
_ 5 M.J. 219 (1978). Paragraph 86 d indicated that
a proceeding in revision could be used to "make the record show the
true proceedings." A certificate of correction is the appropriate mechanism
for this, so the former provision is deleted. Note that a trial session may
be directed, when authorized by an appropriate reviewing authority (_
e.g.,_ the supervisory authority, or the Judge Advocate General),
even if some or all of the sentence has been executed.
2007 Amendment: For purposes of this rule, the list of appropriate reviewing
authorities included in the 1994 amendment includes any court authorized to review cases on appeal under the UCMJ.
Subsection (1) is based on paragraph 80 b of MCM,
1969 (Rev.). See also R.C.M. 505 and 805 and Analysis. Good
cause for detailing a different military judge includes unavailability due
to physical disability or transfer, and circumstances in which inquiry into
misconduct by a military judge is necessary.
Subsection (2) is
based on paragraph 80 c of MCM, 1969 (Rev.). Subsection
responsibility to determine what specific action to take.
Subsection
of mental responsibility.
1998 Amendment: This new Rule implements
Article 76b(b), UCMJ. Created in section 1133 of the National Defense Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66 (1996),
it provides for a post-trial hearing within forty days of the finding that
the accused is not guilty only by reason of a lack of mental responsibility.
Depending on the offense concerned, the accused has the burden of proving
either by a preponderance of the evidence, or by clear and convincing evidence,
that his or her release would not create a substantial risk of bodily injury
to another person or serious damage to property of another due to a present
mental disease or defect. The intent of the drafters is for R.C.M. 1102A
to mirror the provisions of sections 4243 and 4247 of title 18, United States
Code.
This subsection is based on Article 54(c) and on the first sentence
of paragraph 82 a of MCM, 1969 (Rev.).
Subsection (1)(A) is based on Article 38(a). In Federal civilian
courts the reporter is responsible for preparing the record of trial. 28
U.S.C. § 753; Fed. R. App.P. 11 (b). The responsibility of the trial
counsel for preparation of the record is established by Article 38(a), however.
Subsection (1)(B) is based on the second paragraph of paragraph 82 _
a_ of MCM, 1969 (Rev.). See also _United
States v. Anderson_, 12 M.J. 195 (C.M.A. 1982).
Subsection
(2)(A) is based on Article 54(a) and the first sentence of paragraph 82 _
b_(1) of MCM, 1969 (Rev.). Cf. Article 19.
Subsection
(2)(B) is based on Article 54(c) and on the third sentence of paragraph 82 _
b_(1) of MCM, 1969 (Rev.). _ See_ Rep. No. 53, 98th
Cong., 1st Sess. 26 (1983); H.R. Rep. No.491, 81st Cong., 1st Sess. 27 (1949);
S. Rep. No.486, 81st Cong., 1st Sess. 23-24 (1949). _See also
_ Articles 19 and 66; United States v. Whitman, 23
U.S.C.M.A. 48, 48 C.M.R. 519 (1974); United States v. Thompson,
22 U.S.C.M.A. 448, 47 C.M.R. 489 (1973); _United States v. Whitman
_, 3 U.S.C.M.A. 179, 11 C.M.R. 179 (1953). The exception in the stem
of subsection (2)(B) is based on Article 1(14). See Analysis,
subsection (j) of this rule.
The first paragraph of the discussion
under subsection (2)(B) is based on the third sentence of paragraph 82 _
b_(1), and paragraphs 82 b(2) and (3) of MCM, 1969
(Rev.). _ See_ Analysis, R.C.M. 802 concerning the second paragraph
in the discussion. The last paragraph in the discussion is based on the sixth
sentence of paragraph 82 b(1) of MCM, 1969 (Rev.).
2002 Amendment: Subsection (b)(2)(B) was amended to implement the
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section
577 of the National Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the jurisdictional maximum punishment
at special courts-martial. R.C.M. 1103(b)(2)(B) was amended to prevent an
inconsistent requirement for a verbatim transcript between a general court-martial
and a special court-martial when the adjudged sentence of a general court-martial
does not include a punitive discharge or confinement greater than six months,
but does include forfeiture of two-thirds pay per month for more than six
months but not more than 12 months.
2008 Amendment. Subsection (b)(2)(B) was amended to change the requirement to prepare a "verbatim written transcript" to only a "verbatim transcript." This was done in conjunction with adding a definition for the word "writing" in R.C.M. 103(20) in an effort to allow for the use of electronic records.
Subsection (2)(C) is based on the fourth sentence of paragraph 82 b(1) of MCM, 1969
(Rev.). See Article 54(c)(2). In Federal civilian courts
a verbatim record is generally required in all cases (although not all portions
of the record are necessarily transcribed). See 28 U.S.C.
§ 753(b); Fed. R. Crim. P. 11(g) and 12(g); and Fed. R. App. P. 10. _
See also_ Fed. R. Crim. P. 5.1(c). The Constitution requires a record
of sufficient completeness to allow consideration of what occurred at trial,
but not necessarily a verbatim transcript. Mayer v. Chicago,
404 U.S. 189 (1971); Draper v. Washington, 372 U.S. 487
(1963); Coppedge v. United States, 369 U.S. 438 (1962); _
United States v. Thompson, supra._ A summarized record is adequate
for the less severe sentences for which it is authorized.
Subsection
(2)(D) is new. It lists items which are, in addition to a transcript of the
proceedings, required for a complete record. _See United States v.
McCullah_, 11 M.J. 234 (C.M.A. 1981).
Failure to comply
with subsection (b)(2) does not necessarily require reversal. Rather, an
incomplete or nonverbatim record (when required) raises a presumption of
prejudice which the Government may rebut. _See United States v. Eichenlaub
, 11 M.J. 239 (C. M.A. 1981); United States v. McCullah,
supra;_ United States v. Boxdale, 22 U. S.C.M.A.
414, 47 C. M.R. 35 (1973). As to whether an omission is sufficiently substantial
to raise the presumption, see _United States v. Gray
, 7 M.J. 296 (C.M.A. 1979); United States v. Sturdivant
_, 1 M.J. 256 (C.M.A. 1976); United States v. Webb,
23 U.S.C.M.A. 333, 49 C.M.R. 667 (1975); _ United States v. Boxdale,
supra; United States v. Richardson_, 21 U.S.C.M.A. 383, 45 C.M.R.
157 (1972); United States v. Weber, 20 U.S.C.M.A. 82, 42
C.M.R. 274 (1970); United States v. Donati, 14 U.S.C.M.A.
235, 34 C.M.R. 15 (1963); United States v. Nelson, 3 U.S.C.M.A.
482, 13 C.M.R. 38 (1953).
1991 Amendment: Subsection
(b)(2)(D)(iv) was redesignated as subsection (b)(2)(D)(v), and new subsection
(b)(2)(D)(iv) was added. The 1984 rules omitted any requirement that the
convening authority's action be included in the record of trial. This amendment
corrects that omission.
Subsection (3) is based on paragraph
82 b(5), the last sentence of paragraph 84 c,
paragraph 85 _ d_, the third sentence of the third paragraph
of paragraph 88 _ f_, the penultimate sentence of paragraph
88 g, and the last sentence of paragraph 91 c of
MCM, 1969 (Rev. ). See also S. Rep. No. 53, 98th Cong.,
1st Sess. 26 (1983); R.C.M. 1106(f) and Analysis; and _United States
_1995 Amendment:
_ Punishment of confinement on bread and water or diminished rations
[R.C.M. 1003(d)(9)], as a punishment imposable by a court-martial,
was deleted. Consequently, the requirement to attach a Medical Certificate
to the record of trial [R.C.M. 1103(b)(3)(L)] was deleted.
Subsections (3)(M) and (3)(N) were redesignated (3)(L) and (3)(M), respectively.
This subsection is based on Articles 19 and 54(c) and paragraph
83 of MCM, 1969 (Rev.).
2002 Amendment: Subsection
19, UCMJ) contained in section 577 of the National Defense Authorization
Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing
the jurisdictional maximum punishment at special courts-martial. R.C.M. 1103(c)
was amended to conform the requirements for a verbatim transcript with the
requirements of Article 19 for a "complete record" in cases where
the adjudged sentence includes a bad-conduct discharge, confinement for more
than six months, or forfeiture of pay for more than six months.
This subsection is based on the fifth sentence of paragraph 82 _
b_(1) and the third sentence of paragraph 83 b of
MCM, 1969 (Rev.). The language of paragraph 82 b(1) which
referred to termination "with prejudice to the Government" has
been modified. If the court-martial terminates by reason of mistrial, withdrawal,
or dismissal of charges, a limited record is authorized, whether or not the
proceedings could be reinstituted at another court-martial.
2008 Amendment. Section (e) was amended to authorize a limited record in cases in which a discharge in lieu of court-martial is approved after findings of the court martial have been made.
This subsection is based on paragraph 82 i of MCM,
1969 (Rev. ). See also _United States v. Lashley
, 14 M.J. 7 (C.M.A. 1982); United States v. Boxdale. supra.
_
2002 Amendment: Subsection (f)(1) was
amended to implement the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ)
contained in section 577 of the National Defense Authorization Act for Fiscal
Year 2000, P. L. No. 106Sec. 65, 113 Stat. 512 (1999) increasing the jurisdictional
maximum punishment at special courts-martial. R.C.M. 1103(f)(1) was amended
to include the additional limitations on sentence contained in Article 19,
UCMJ.
_ 2004 Amendment:_ Subsection (f)(2) was amended
to reflect amendments to Article 63, UCMJ, in the National Defense Authorization
Act for Fiscal Year 1993, Pub.L.No. 102-484, 106 Stat. 2315, 2506 (1992).
The revisions provide that subsection (f)(2) sentencing limitations are properly
applicable only to the sentence that may be approved by the convening authority
following a rehearing. Subsection (f)(2) as revised does not limit the maximum
sentence that may be adjudged at the rehearing. _See United States
M.J. 38 (C.M.A. 1992)(Cox, J., concurring); _United States v. Greaves,
_ 48 M.J. 885 (A.F.Ct.Crim.App. 1998), rev. denied, 51
M.J. 365 (1999).
Subsection (1) is based on the first paragraph of paragraph 49_
b_(2) of MCM, 1969 (Rev.). The trial counsel is responsible for
preparation of the record (see Article 38(a)), although,
as paragraph 49 b(2) of MCM, 1969 (Rev.) indicated, ordinarily
the court reporter actually prepares the record. In subsection (A), the number
of copies required has been increased from two to four to conform to current
practice.
1993 Amendment: Subsection (g)(1)(A)
was amended by adding the phrase "and are subject to review by a Court
of Criminal Appeals under Article 66" to eliminate the need to make
four copies of verbatim records of trial for courts-martial which are not
subject to review by a Court of Criminal Appeals. These cases are reviewed
in the Office of the Judge Advocate General under Article 69 and four copies
are not ordinarily necessary.
2008 Amendment. Subsection (g)(1)(A) was amended to eliminate the need to make additional copies of the record of trial and allow for transmission of electronic records.
This subsection is based on the first sentence of paragraph 82 _
d_ of MCM, 1969 (Rev.). The remainder of that paragraph is deleted
as unnecessary.
Subsection (1)(A) and the first paragraph of the discussion are
based on the first paragraph of paragraph 82 e of MCM, 1969
(Rev.).
Subsection (1)(B) is based on the first sentence of the
second paragraph of paragraph 82 e of MCM, 1969 (Rev.).
The first paragraph of the discussion is based on _ United States v.
Anderson, supra_ at 197. Examination before authentication will improve
the accuracy of the record, reduce the possibility of the necessity for a
certificate of correction, and obviate the problems discussed in _
Anderson_. The first paragraph of the discussion is based on the
fourth and fifth sentences of the second paragraph of paragraph 82 _
e_ of MCM, 1969 (Rev.). See also _United
States v. Anderson, supra_ at 197. The second paragraph of the discussion
is based on_United v. Anderson, supra._ See also _
United States v. Everett_, 3 M.J. 201, 202 (C.M.A. 1977). The third
paragraph of the discussion is based on the second sentence of the second
paragraph of paragraph 82 e of MCM, 1969 (Rev.).
This subsection is new and is based on Article 1(14), which is also
new. See Military Justice Act of 1983, Pub.L. No. 98-209,
§ 6(a), 97 Stat. 1393 (1983). This subsection implements Article 1(14)
in accordance with guidance in S.Rep. No. 53, 98th Cong., 1st Sess. 25-26
(1983). The concerns expressed in United States v. Barton,
6 M.J. 16 (C.M.A. 1978) were also considered.
Subsection (1)
provides for recording courts-martial by videotape, audiotape, or similar
means, if authorized by regulation of the Secretary concerned. Such Secretarial
authorization is necessary to ensure that this procedure will be used only
when appropriate equipment is available to permit its effective use, in accordance
with the requirements for this rule. Such equipment includes not only devices
capable of recording the proceedings accurately, but playback equipment adequate
to permit transcription by trained personnel or examination by counsel and
reviewing authorities. In addition, if transcription is not contemplated,
the recording method used must be subject to production of duplicates for
compliance with subsection (j)(5) of this rule.
Subsection (2)
requires that, ordinarily, the record will be reduced to writing, even if
recorded as described in subsection (1). This preference for a written record
is based on the fact that such a record is easier to use by counsel, reviewing
authorities, and the accused, and is often easier to produce in multiple
copies. Cf. United States v. Barton, supra. Note,
however, that the rule permits recording proceedings and transcribing them
later without using a court reporter. This adds a measure of flexibility
in the face of a possible shortage of court reporters. This subsection is
consistent with the already common practice of using "back-up"
recordings to prepare a record when the court reporter's equipment has failed.
2008 Amendment. Subsection (j)(2) was amended to reference the new definition of "writing" as found in RCM 103.
Subsection (3) recognizes that military exigencies may prevent transcription of the
record, especially at or near the situs of the trial. In such instances,
where an accurate record already exists, the convening authority's action
should not be postponed for lack of transcription, subject to the provisions
in subsection (3). Thus, the convening authority may take action, and transcription
for appellate or other reviewing authorities may occur later. _See
_ subsection (4). Note that additional copies of the record need
not be prepared in such case, except as required in subsection (j)(5)(A).
Note also, however, that facilities must be reasonably available for use
by the defense counsel (and when appropriate the staff judge advocate or
legal officer, see R.C.M. 1106) to listen to or view and
listen to the recordings to use this subsection.
Subsection (4)(A)
is based on the recognition that it is impracticable for appellate courts
and counsel not to have a written record. See S.Rep. No.
53, supra at 26; _ United States v. Barton, supra.
_ Note that the transcript need not be authenticated under R.C.M.
of the transcript can be certified by a person who has viewed and/or heard
the authenticated recording.
Subsection (4)(B) provides flexibility
in cases not reviewed by the Court of Criminal Appeals. Depending on regulations
of the Secretary, a written record may never be prepared in some cases. Many
cases not reviewed by a Court of Criminal Appeals will be reviewed only locally. _
See_ R.C.M. 1112. The same exigencies which weigh against preparation
of a written record may also exist before such review. If a written record
in not prepared, the review will have to be conducted by listening to or
viewing and listening to the authenticated recording.
Subsection
to serve a copy of the record of trial on the accused. Article 54(d). Note
that if a recording is used, the Government must ensure that it can provide
the accused reasonable opportunity to listen to or view and listen to the
recording.
This rule shall be implemented in a manner consistent with Executive Order 12958, as amended, concerning classified national security information.
2005 Amendment: The 1998 Amendments to the Manual for Courts-Martial introduced the requirement to seal Mil. R. Evid. 412 (rape shield) motions, related papers, and the records of the hearings, to "fully protect an alleged victim of 'sexual assault' against invasion of privacy and potential embarrassment." MCM Appendix 22, p. 36. As current Rule 412(c)(2) reads, it is unclear whether appellate courts are bound by orders sealing Rule 412 information issued by the military judge.
The effect and scope of a military judge's order to seal exhibits, proceedings, or materials is similarly unclear. Certain aspects of the military justice system, particularly during appellate review, seemingly mandate access to sealed materials. For example, appellate defense counsel have a need to examine an entire record of trial to advocate thoroughly and knowingly on behalf of a client. Yet there is some uncertainty about appellate defense counsel's authority to examine sealed materials in the absence of a court order. This authority applies to both military and civilian appellate defense counsel.
The rule is designed to respect the privacy and other interests that justified sealing the material in the first place, while at the same time recognizing the need for certain military justice functionaries to review that same information. The rule favors an approach relying on the integrity and professional responsibility of those functionaries, and assumes that they can review sealed materials and at the same time protect the interests that justified sealing the material in the first place. Should disclosure become necessary, then the party seeking disclosure is directed to an appropriate judicial or quasi-judicial official or tribunal to obtain a disclosure order.
Subsection (1) is new and is self-explanatory.
2008 Amendment. Subsection (a)(1) was amended to allow for the use of an electronic record of trial and to define requirements for service for electronic records.
Subsection (2) is based on Article 54(a) and (b) and paragraph 82 f of
MCM, 1969 (Rev.). The former rule has been changed to require that the record,
or even a portion of it, may be authenticated only be a person who was present
at the proceedings the record of which that person is authenticating. This
means that in some cases (e.g., when more than one military
judge presided in a case) the record may be authenticated by more than one
person. See United States v. Credit, 4 M.J. 118 (C.M.A.
1977); S.Rep. No. 1601, 90th Cong., 2d Sess. 12-13 (1968); H.R. Rep. No.
1481, 90th Cong., 2d Sess. 10 (1968). _See also United States v. Galloway
_, 2 U.S.C.M.A. 433, 9 C.M.R. 63 (1953). This subsection also changes
the former rule in that it authorizes the Secretary concerned to prescribe
who will authenticate the record in special courts-martial at which no bad-conduct
discharge is adjudged. See Article 54(b). In some services,
the travel schedules of military judges often result in delays in authenticating
the record. Such delays are substantial, considering the relatively less
severe nature of the sentences involved in such cases. This subsection allows
greater flexibility to achieve prompt authentication and action in such cases.
The second paragraph of the discussion is based on _United States
1976). See also United States v. Lott, 9
M.J. 70 (C.M.A. 1980); Unites States v. Green, 7 M.J. 687
(N.C.M.R. 1979); United States v. Lowery, 1 M.J. 1165 (N.C.M.R.
1977). The third paragraph of the discussion is based on _United States
_
2002 Amendment:_ Subsection (a)(2)(A) was amended to implement the
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section
577 of the National Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the jurisdictional maximum punishment
at special courts-martial. R.C.M. 1104(a)(2)(A) was amended to ensure that
the military judge authenticates all verbatim records of trial at special
courts-martial.
Subsection (1)(A) is based on Article 54(d) and the first sentence
of paragraph 82 g(1) of MCM, 1969 (Rev.) _See also
_ H.R. Rep. No. 2498, 81st Cong., 1st Sess. 1048 (1949).
Subsection
(1)(B) is based on the third through fifth sentences of the first paragraph
of paragraph 82 g(1) of MCM, 1969 (Rev.).
Subsection
(1)(C) is based on H.R. Rep. No. 549, 98th Cong., 1st Sess. 15 (1983); _
United States v. Cruz-Rijos, supra._ Service of the record of trial
is now effectively a prerequisite to further disposition of the case. _
See_ Article 60(b) and (c)(2). As a result, inability to serve the
accused could bring the proceeding to a halt. Such a result cannot have been
intended by Congress. Article 60(b) and (c)(2) are intended to ensure that
the accused and defense counsel have an adequate opportunity to present matters
to the convening authority, and that they will have access to the record
in order to do so. Cong. Rec. § 5612 (daily ed. April 28, 1983) (statement
of Sen. Jepsen). As a practical matter, defense counsel, rather than the
accused, will perform this function in most cases. See Article
38(c). Consequently, service of the record on defense counsel, as provided
in this subsection, fulfills this purpose without unduly delaying further
disposition. See United States v. Cruz-Rijos, supra. Note
that if the accused had no counsel, or if the accused's counsel could not
be served, the convening authority could take action without serving the
accused only if the accused was absent without authority. _ See_ R.C.M.
1105(d)(4) and Analysis.
Subsection (1)(D) is based on the third
and fourth paragraphs of paragraph 82 g(1) of MCM, 1969
(Rev.).
This subsection is based on paragraph 82 h of MCM,
1969 (Rev.). Note that if more than one copy of the record is authenticated
then each may serve as the record of trial, even if the original is lost.
Subsection (1) and the discussion are based on paragraph 86 _
c_ of MCM, 1969 (Rev.). See also the first paragraph
of paragraph 95 of MCM, 1969 (Rev.). Subsection (2) is new and is based on
United States v. Anderson, 12 M.J. 195 (C.M.A. 1982). _
See also_ _ABA Standards, Special Functions of the Trial Judge
_ § 6-1.6 (1978). The discussion is based on_
United States v. Anderson, supra._ Subsection (3) is based on the
second paragraph of paragraph 82 g(1) and paragraph 86 _
c_ of MCM, 1969 (Rev.).
This subsection is based on Article 60. The code no longer requires
the convening authority to review the record. However, a record of trial
must be prepared before the convening authority takes action. _See
_ Article 60(b)(2) and (3), and (d). Therefore, it is appropriate
to forward the record, along with other required matters, to the convening
authority. This subsection is consistent with the first two sentences of
paragraph 84 _ a_ of MCM, 1969 (Rev.).
_
2002 Amendment:_ Subsection (e) was amended to implement the amendment
to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65,
113 Stat. 512 (1999) increasing the jurisdictional maximum punishment at
special courts-martial. This amendment reflects the change to R.C.M. 1106
for special court- martial with an adjudged sentence that includes confinement
for one year.
This subsection is based on Articles 38(c) and 60(b). _See
also_ paragraphs 48 k(2) and 77 a of
MCM, 1969 (Rev.).
This subsection is based on Articles 38(c) and 60(b). The post-trial
procedure as revised by the Military Justice Act of 1983, Pub.L. No. 98-209,
97 Stat. 1393 (1983) places a heavier responsibility on the defense to take
steps to ensure that matters it wants considered are presented to the convening
authority. Therefore this subsection provides guidance as to the types of
matters which may be submitted. See Article 38(c). _
See also_ paragraph 48 k(3) and 77 a of
MCM, 1969 (Rev.). Note that the matters the accused submits must be forwarded
to the convening authority. See United States v. Siders,
15 M.J. 272 (C.M.A. 1983). As to the last paragraph in the discussion, _
see also_ Mil. R. Evid. 606(b) and Analysis; _United States
Bishop_, 11 M.J. 7 (C.M.A. 1981); United States v. West ,
23 U.S.C.M.A. 77, 48 C.M.R. 458 (1974); _United States v. Bourchier
_, 5 U.S.C.M.A. 15, 17 C.M.R. 15 (1954).
_1995
Amendment:_ The Discussion accompanying subsection (b)(4) was amended
to reflect the new requirement, under R.C.M. 1106(d)(3)(B), that the staff
judge advocate or legal advisor inform the convening authority of a recommendation
for clemency by the sentencing authority, made in conjunction with the announced
sentence.
2015 Amendment: R.C.M. 1105(b) was revised to implement Section 1706 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014.
This subsection is based on Article 60(b). Subsection (4) clarifies
the effect of post-trial sessions. A re-announcement of the same sentence
would not start the time period anew. Subsection (5) is based on H.R. Rep.
No. 549, 98th Cong., 1st Sess. 15 (1983).
_1986 Amendment:
_ Subsection (c) was revised to reflect amendments to Article 60,
UCMJ, in the "Military Justice Amendments of 1986," tit. VIII,
§ 806, National Defense Authorization Act for Fiscal Year 1987, Pub.L.
No. 99-661, 100 Stat, 3905, (1986). These amendments simplify post-trial
submissions by setting a simple baseline for calculating the time for submissions.
_
1994 Amendment:_ Subsection (c)(1) was amended to clarify that the
accused has 10 days to respond to an addendum to a recommendation of the
staff judge advocate or legal officer when the addendum contains new matter. _
See United States v. Thompson_, 25 M.J. 662 (A.F.C.M.R. 1987). An
additional amendment permits the staff judge advocate to grant an extension
of the 10-day period.
Subsection (1) is based on Article 60(c)(2). Subsection (2) is based
on Article 60(c)(2). This subsection clarifies that the defense may submit
matters in increments by reserving in writing its right to submit additional
matters within the time period. In certain cases this may be advantageous
to the defense as well as the Government, by permitting early consideration
of such matters. Otherwise, if the defense contemplated presenting additional
matters, it would have to withhold all matters until the end of the period.
Subsection (3) is based on Article 60(b)(4). Subsection (4) ensures that
the accused cannot, by an unauthorized absence, prevent further disposition
of the case. Cf. United States v. Schreck, 10 M.J. 226 (C.M.A.
1983). Note that if the accused has counsel, counsel must be served a copy
of the record (see R.C.M. 1104(b)(1)(C)) and that the defense
will have at least 7 days from such service to submit matters. Note also
that the unauthorized absence of the accused has no effect on the 30, 20,
or 7 day period from announcement of the sentence within which the accused
may submit matters (except insofar as it may weigh against any request to
extend such a period). The discussion notes that the accused is not required
to raise matters, such as allegations of legal error, in order to preserve
them for consideration on appellate review.
This subsection is based on Article 60(d), _as amended,
_ see Military Justice Act of 1983, Pub.L. No. 98-209,
§ 5(a)(1), 97 Stat. 1393 (1983). The first paragraph of paragraph 85 _
a_ of MCM, 1969 (Rev.) was similar.
_2002 Amendment:
_ Subsection (a) was amended to implement the amendment to 10 U.S.C.
Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense
Authorization Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512
This amendment requires all special courts-martial cases subject to appellate
review to comply with this rule.
This subsection is based on Article 6(c) and on the second paragraph
of paragraph 85 a of MCM, 1969 (Rev.). Legal officers have
been included in its application based on Article 60(d). The discussion notes
additional circumstances which have been held to disqualify a staff judge
advocate. The first example is based on _United States v. Thompson
_, 3 M.J. 966 (N.C.M.R. 1977), rev'd on other grounds, 6
M.J. 106 (C.M.A. 1978), petition dismissed, 7 M.J. 477 (C.M.A.
1979). The second example is based on United States v. Choice,
23 U.S.C.M.A. 329, 49 C.M.R. 663 (1975). See also _
United States v. Cansdale_, 7 M.J. 143 (C.M.A. 1979); _ United
States v. Conn_, 6 M.J. 351 (C.M.A. 1979); _United States
United States v. Conn_ and United States v. Choice, both _
supra._ Cf. Articles 1(9); 6(c); 22(b); 23(b). The
fourth example is based on United States v. Collins, 6 M.J.
256 (C.M.A. 1979); United States v. Engle, 1 M.J. 387 (C.M.A.
1976). See also United States v. Newman,
14 M.J. 474 (C.M.A. 1983) as to the disqualification of a staff judge advocate
or convening authority when immunity has been granted to a witness in the
case.
1986 Amendment: The phrase "or any
reviewing officer" was changed to "to any reviewing officer"
to correct an error in MCM, 1984.
This subsection is based on Article 60(d) and on S.Rep. No. 53,
98th Cong., 1st Sess. 20 (1983). As to the subsection (1), _see also
_ Article 60(c). Subsections (3), (4), and (5) conform to the specific
guidance in S.Rep. No. 53, supra. Subsection (6) is based
on S.Rep. No. 53, 98th Cong., 1st Sess. 21 (1983). The recommendation should
be a concise statement of required and other matters. Summarization of the
evidence and review for legal error is not required. Therefore paragraph
85 _ b_ of MCM, 1969 (Rev.) is deleted.
Paragraph
85 c of MCM, 1969 (Rev.) is also deleted. That paragraph
stated that the convening authority should explain any decision not to follow
the staff judge advocate's recommendation. See also _
United States v. Harris_, 10 M.J. 276 (C.M.A. 1981); _ United
States v. Dixson_, 9 M.J. 72 (C.M.A. 1980); _United States
no longer required to examine the record for legal or factual sufficiency.
The convening authority's action is solely a matter of command prerogative.
Article 60(c). Therefore the convening authority is not obligated to explain
a decision not to follow the recommendation of the staff judge advocate or
legal officer.
1995 Amendment: Subsection (d)(3)(B)
is new. It requires that the staff judge advocate's or legal advisor's recommendation
inform the convening authority of any clemency recommendation made by the
sentencing authority in conjunction with the announced sentence, absent a
written request by the defense to the contrary. Prior to this amendment,
an accused was responsible for informing the convening authority of any such
recommendation. The amendment recognizes that any clemency recommendation
is so closely related to the sentence that staff judge advocates and legal
advisors should be responsible for informing convening authorities of it.
The accused remains responsible for informing the convening authority of
other recommendations for clemency, including those made by the military
judge in a trial with member sentencing and those made by individual members. _
See_ United States v. Clear, 34 M.J. 129 (C.M.A.
1992); R.C.M. 1105(b)(4). Subsections (d)(3)(B) - (d)(3)(E) are redesignated
as (d)(3)(C) - (d)(3)(F), respectively.
2008 Amendment: Subsections (d)(1) and (d)(3) were modified to simplify the requirements of the staff judge advocate's or legal officer's recommendation.
2010 Amendment: Subsection (d) is restated in its entirety to clarify that subsections (d)(4), (d)(5) and (d)(6) were not intended to be eliminated by the 2008 Amendment.
2008 and 2010 Amendments. Section (d) was amended to change the required contents of the staff judge advocates recommendation. This section no longer requires a staff judge advocate to provide a summary of the accused's service record and allows for the use of personnel records of the accused instead. This section was also amended to adjust the required contents into a more concise statement of what is required. The 2008 amendment appeared to have resulted in the deletion of subsections (d)(4) through (d)(6). Therefore, in 2010 this subsection was again modified to make clear that subsection (d) would continue to have six sub-parts: (d)(1) through (d)(6).
This subsection is based on Article 60 and 63. When no findings
of guilty are reached, no action by the convening authority is required.
Consequently, no recommendation by the staff judge advocate or legal officer
is necessary. The last paragraph of paragraph 85 b of MCM,
1969 (Rev.), which was based on Article 61 (before it was amended), was similar.
_
1990 Amendment:_ Subsection (e) was amended in conjunction with the
implementation of findings of not guilty only by reason of lack of mental
responsibility provided for in Article 50 a, UCMJ (Military
Justice Amendments of 1986, tit. VIII, § 802, National Defense Authorization
Act for Fiscal Year 1987, Pub. L. 99-661, 100 Stat. 3905 (1986)).
This subsection is based on Article 60(d). See also _
United States v. Goode_, 1 M.J. 3 (C.M.A. 1975). Subsection (1) is
based on Article 60(d). See also _United States v.
Hill_, M.J. 295 (C.M.A. 1977); _United States v. Goode, supra.
_
1990 Amendment: Subsection (f)(1) was
added to make clear that the accused should be provided with a personal copy
of the recommendation.
1994 Amendment: The Discussion
to subsection (f)(l) was amended to correct a grammatical error and to clarify
that the method of service of the recommendation on the accused and the accused's
counsel should be reflected in the attachments to the record of trial. If
it is impractical to serve the accused, the record should contain a statement
justifying substitute service. Subsection (f)(1) recognizes that Congress
sanctions substitute service on the accused's counsel. H.R. Rep. No. 549,
98th Cong., 1st Sess. 15 (1983). _ See also United States v. Roland
_, 31 M.J. 747 (A.C.M.R. 1990).
Subsection (2) makes
clear who is to be served with the post-trial review. _See United
States v. Robinson_, 11 M.J. 218, 223 n.2 (C.M.A. 1981). This issue
has been a source of appellate litigation. _ See e.g., United States
Babcock_, 14 M.J. 34 (C.M.A. 1982); _ United States v. Robinson,
supra; United States v. Clark_, 11 M.J. 70 (C.M.A. 1981); _
United States v. Elliot_, 11 M.J. 1 (C.M.A. 1981); _ United
States v. Marcoux_, 8 M.J. 155 (C.M.A. 1980); _United States
_, 5 M.J. 451 (C.M.A. 1978); United States v. Iverson,
5 M.J. 440 (C.M.A. 1978); United States v. Annis, 5 M.J.
351 (C.M.A. 1978). The last sentence in this subsection is based on _
United States v. Robinson, United States v. Brown_, and_ United
States v. Iverson,_ all _supra. _The discussion is
based on United States v. Robinson, supra.
Subsection
Cruz_, 5 M.J. 286 (C.M.A. 1978); _United States v. Cruz-Rijos
_, 1 M.J. 429 (C.M.A. 1976). Ordinarily the record will have been
provided to the accused under R.C.M. 1104(b).
Subsections (4)
and (5) are based on Article 60(d). See also _United
States v. Goode, supra. See United States v. McAdoo_, 14 M.J. 60
(C.M.A. 1982).
1986 Amendment: Subsection (5)
was amended to reflect amendments to Article 60, UCMJ, in the "Military
Justice Amendments of 1986," tit. VIII, § 806, National Defense
Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905
(1986). See Analysis to R.C.M. 1105(c).
Subsection
98th Cong., 1st Sess. 21 (1983); _United States v. Morrison, supra;
United states v.Barnes_, 3 M.J. 406 (C.M.A. 1982); _United
States v. Goode, supra. But see United States v. Burroughs, supra; United
States v. Moles_, 10 M.J. 154 (C.M.A. 1981) (defects not waived by
failure to comment).
Subsection (7) is based on_United
States v. Narine_ , 14 M.J. 55 (C.M.A. 1982).
_
1994 Amendment:_ Subsection (f)(7) was amended to clarify that when
new matter is addressed in an addendum to a recommendation, the addendum
should be served on the accused and the accused's counsel. The change also
clarifies that the accused has 10 days from the date of service in which
to respond to the new matter. The provision for substituted service was
also added. Finally, the Discussion was amended to reflect that service of
the addendum should be established by attachments to the record of trial.
This rule is based on Articles 71(d) and 74, and paragraphs 88 _
e_ and 97 a of MCM, 1969 (Rev.). _See also
_ Fed. R. Crim. P. 32(e). The second paragraph of the discussion to
subsection (b) is based on United States v. Stonesifer,
2 M.J. 212 (C.M.A. 1977); United States v. Williams, 2 M.J.
74 (C.M.A. 1976); United States v. Occhi, 2 M.J. 60 (C.M.A.
1976). Subsection (c) is new and based on Article 71; _United States
State v. May_, 10 U.S.C.M.A. 258, 27 C.M.R. 432 (1959). _
Cf._ 18 U.S.C. § 3651 ("upon such terms and conditions
as the court deems best"). The notice provisions are designed to facilitate
vacation when that becomes necessary. See the Analysis,
R.C.M. 1109. The language limiting the period of suspension to the accused's
current enlistment has been deleted. _See United States v. Thomas
_, 45 C.M.R. 908 (N.C.M.R. 1972). Cf. _United
States v. Clardy_, 13 M.J. 308 (C.M.A. 1982). _ See also_ subsection
1990 Amendment: The third sentence
was amended to delete the limitation of Secretarial designation to an "officer
exercising general court-martial jurisdiction over the command to which the
accused is assigned" and to permit such designation to any "commanding
officer." This comports with the language of Article 74(a), UCMJ and
paragraphs 97 a of MCM, 1951 and MCM, 1969. The specific
designation of inferior courts-martial convening authorities to remit or
suspend unexecuted portions was not intended to limit in any other respects
the Secretarial designation power. Except for a sentence which has been approved
by the President, remission or suspension authority is otherwise left entirely
to departmental regulations.
The last sentence was added to clarify
the authority of the officials named in section (b) to grant clemency or
mitigating action on those parts of the sentence that have been approved
and ordered executed but that have not actually been carried out. In the
case of forfeiture the "carrying out " involves the actual collection
after pay accrues on a daily basis. Thus, even when a sentence to total forfeiture
has been approved and ordered executed, the named officials can still grant
clemency or mitigating action. Although a prisoner may be administratively
placed in a nonpay status when total forfeiture has been ordered executed,
the total forfeiture is collected as it would otherwise accrue during the
period that the prisoner is in a nonpay status. If clemency were granted,
the prisoner could be returned administratively to a pay status, pay would
accrue, and any resulting partial forfeiture would be collected as it accrues.
Likewise, that portion of confinement which has not been served is "unexecuted".
_
2004 Amendment:_ Subsection (b) was amended to conform to the
limitations on Secretarial authority to grant clemency for military prisoners
serving a sentence of confinement for life without eligibility for parole
contained in section 553 of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001, Pub.L.No. 106-398, 114 Stat. 1654, Oct 30, 2000.
2015 Amendment: This subsection was revised to implement Article 60(c), UCMJ, as amended by Section 1702 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014. For offenses occurring prior to 24 June 2014, refer to prior versions of R.C.M. 1108(b).
This subsection is based on Article 72 and paragraph 97 _
b_ of MCM, 1969 (Rev.).
This subsection is based on the fourth paragraph of paragraph 97
b of MCM, 1969 (Rev.); United States v. Pells ,
5 M.J. 380 (C.M.A. 1978); United States v. Rozycki, 3 M.J.
127, 129 (C.M.A. 1977).
This subsection is new and based on _Gagnon v. Scarpelli
_, 411 U.S. 778 (1973); Morrissey v. Brewer, 408
U.S. 471 (1972); United States v. Bingham, 3 M.J. 119 (C.M.A.
1977). It is consistent with Fed. R. Crim. P. 32.1(a)(1). Note that if the
actual hearing on vacation under subsection (d)(1) or (e)(3) and (4) is completed
within the specified time period, a separate probable cause hearing need
not be held.
court-martial sentence including a bad-conduct discharge.
This subsection is based on Article 72(a) and (b); the first two
paragraphs of paragraph 97 b of MCM, 1969 (Rev.); _
United States v. Bingham, supra; United States v. Rozycki_, supra.
See also Fed. R. Crim. P. 32.1(a)(2).
a bad-conduct discharge or of a suspended summary court-martial sentence.
This subsection is based on Article 72(c); _United States
Fed. R. Crim. P. 32.1(b) is not adopted. That rule requires a hearing before conditions
of probation may be modified. Modification is seldom used in the military.
Because a probationer may be transferred or change duty assignments as a
normal incident of military life, a commander should have the flexibility
to make appropriate changes in conditions of probation without having to
conduct a hearing. This is not intended to permit conditions of probation
to be made substantially more severe without due process. At a minimum, the
probationer must be notified of the changes.
_1986 Amendment:
_ Several amendments were made to R.C.M. 1109 to specify that the
notice to the probationer concerning the vacation proceedings must be in
writing, and to specify that the recommendations concerning vacation of the
suspension provided by the hearing officer must also be in writing. _
Black v. Romano_, 471 U.S. 606, 105 S.Ct. 2254 (1985). Several references
to "conditions of probation" were changed to "conditions
of suspension" for consistency of terminology.
_
1998 Amendment:_ The Rule is amended to clarify that "the
suspension of a special court-martial sentence which as approved includes
a bad-conduct discharge," permits the officer exercising special court-martial
jurisdiction to vacate any suspended punishments other than an approved suspended
bad-conduct discharge.
2002 Amendment: Subsection
19, UCMJ) contained in section 577 of the National Defense Authorization
Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing
the jurisdictional maximum punishment at special courts-martial.
a bad-conduct discharge or confinement for one year.
Subsection (f) was amended to implement the amendment to 10 U.S.C.
Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense
Authorization Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)
increasing the jurisdictional maximum punishment at special courts-martial.
This amendment reflects the decision to treat an approved sentence of confinement
for one year, regardless of whether any period of confinement is suspended,
as a serious offense, in the same manner as a suspended approved bad-conduct
discharge at special courts-martial under Article 72, UCMJ, and R.C.M. 1109.
Introduction. This rule is new and is based
on Article 61, as amended,_ see_ Military Justice Act of 1983,
Pub.L. No. 98-209, § 5(b)(1), 97 Stat. 1393 (1983). The rule
provides procedures to ensure that a waiver or withdrawal of appellate review
is a voluntary and informed choice. See also Appendices 19
and 20 for forms. See S. Rep. No. 53, 98th Cong., 1st Sess.
22-23 (1983).
This subsection is based on Article 61. The discussion is also based
on Articles 64 and 69(b).
2002 Amendment: Subsection
19, UCMJ) contained in section 577 of the National Defense Authorization
Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing
the jurisdictional maximum punishment at special courts-martial.
This subsection is based on Article 61(a). Although Article 61(b)
does not expressly require the signature of defense counsel as does Article
61(a), the same requirements should apply. Preferably counsel who represented
the accused at trial will advise the accused concerning waiver, the appellate
counsel (if one has been appointed) will do so concerning withdrawal. This
subsection reflects this preference. It also recognizes, however, that this
may not always be practicable; for example, the accused may be confined a
substantial distance from counsel who represented the accused at trial when
it is time to decide whether to waive or withdraw appeal. In such cases,
associate counsel may be detailed upon request by the accused. _See
_ R.C.M. 502(d)(1) as to the qualification of defense counsel. Associate
counsel is obligated to consult with at least one of the counsel who represented
the accused at trial. In this way the accused can have the benefit of the
opinion of the trial defense counsel even if the defense counsel is not immediately
available. Subsection (2)(C) provides for the appointment of substitute counsel
when, for the limited reasons in R.C.M. 505(d)(2)(B), the accused is no longer
represented by any trial defense counsel. Subsection (3) contains similar
provisions concerning withdrawal of an appeal. Note that if the case is
reviewed by the Judge Advocate General, there would be no appellate counsel.
In such cases, subsection (3)(C) would apply. Subsection (6) clarifies that
here, as in other circumstances, a face-to-face meeting between the accused
and counsel is not required. When necessary, such communication may be by
telephone, radio, or similar means. See also Mil. R. Evid.
511(b). The rule, including the opportunity for appointment of associate
counsel, is intended to permit face-to-face consultation with an attorney
in all but the most unusual circumstances. Face-to-face consultation is strongly
encouraged, especially if the accused wants to waive or withdraw appellate
review.
This subsection is intended to ensure that any waiver or withdrawal
of appellate review is voluntary. See S. Rep. No. 53, _
supra_ at 22-23; _Hearings on S. 2521 Before the Subcomm.
on Manpower and Personnel of the Senate Comm. on Armed Services,_ 97th
Cong., 1st Sess. 78, 128 (1982); United States v. Mills,
12 M.J. 1 (C.M.A. 1981). See also R.C.M. 705(c)(1)(B).
This subsection is based on Article 60(a) and on S. Rep. No. 53,
supra at 23. Requiring not only the waiver but a statement,
signed by the accused, that the accused has received essential advice concerning
the waiver and that it is voluntary should protect the Government and the
defense counsel against later attacks on the adequacy of counsel and the
validity of the waiver or withdrawal.
Subsection (1) is based on Article 60(a). Article 60(b) does not
establish where a withdrawal is filed. Subsection (2) establishes a procedure
which should be easy for the accused to use and which ensures the withdrawal
will be forwarded to the proper authority. A waiver or withdrawal of appeal
is filed with the convening authority or authority exercising general court-martial
jurisdiction for administrative convenience. See Hearings
on S. 2521, supra at 31.
Subsection (1) is based on Article 60(a). Subsection (2) is based
on Article 60(b). See also subsection (g)(3) and Analysis,
below.
1991 Amendment: Language was added to
clarify that, although the waiver must be filed within 10 days of receipt
by the accused or defense counsel of the convening authority's action, it
may be signed at any time after trial up to the filing deadline.
Subsection (1) is based on Article 60(c). Subsections (2) and (3)
are based on Article 64. Subsection (3) also recognizes that, once an appeal
is filed (i.e., not waived in a timely manner) there may
be a point at which it may not be withdrawn as of right. Cf. Sup.
Ct. R. 53; Fed.R.App. P.42; Hammett v.Texas, 448 U.S. 725
(1974); Shellman v. U.S. Lines, Inc., 528 F. 2d 675 (9th
Cir. 1975), cert. denied, 425 U.S. 936 (1976). Subsection
by ensuring compliance with this rule. The accused should be notified promptly
if a purported waiver or withdrawal is defective.
This rule is based generally on paragraph 91 of MCM, 1969 (Rev.),
but is modified to conform to the accused's right to waive or withdraw appellate
review and to the elimination of supervisory review and of automatic review
of cases affecting general and flag officers. See Articles
61, 64, 65, 66(b). Some matters in paragraph 91 of MCM, 1969 (Rev.) are covered
in other rules. See R.C.M. 1103(b)(3)(F); 1104(b)(1)(B).
2008 Amendment. Subsection (a)(1) was amended to allow for forwarding of electronic records of trial, conforming to RCM 1104 as amended.
2002 Amendment: R.C.M. 1111(b) was amended to implement the amendment
to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65,
113 Stat. 512 (1999) increasing the jurisdictional maximum punishment at
special courts-martial. The amendment ensures all special courts-martial
not requiring appellate review are reviewed by a judge advocate under R.C.M.
This rule is based on Articles 64 and 65(b), _as amended,
see_ Military Justice Act of 1983, Pub.L. No. 98-209, §§
6(d)(1), (7)(a)(1), 97 Stat. 1393 (1983).
_1986 Amendment:
_ The last paragraph of R.C.M. 1112(d) was added to clarify the requirement
that a copy of the judge advocate's review be attached to the original and
each copy of the record of trial. The last paragraph of R.C.M. 1112(e), which
previously contained an equivalent but ambiguous requirement, was deleted.
_
1990 Amendment:_ Subsection (b) was amended in conjunction with the
implementation of findings of not guilty only by reason of lack of mental
responsibility provided for in Article 50 a, UCMJ (Military
Justice Amendments of 1986, tit. VIII, § 802, National Defense Authorization
Act for Fiscal Year 1987, Pub. L. 99-661, 100 Stat. 3905 (1986)).
_
2002 Amendment:_R.C.M. 1112(a)(2) was amended to implement the amendment
to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65,
113 Stat. 512 (1999) increasing the jurisdictional maximum punishment at
special courts-martial. The amendment ensures all special courts-martial
not requiring appellate review are reviewed by a judge advocate under R.C.M.
Introduction. Fed. R. Crim. P. 38 is inapplicable.
The execution of sentence in the military is governed by the code. _
See_ Articles 57 and 71. See also Articles 60, 61,
64, 65, 66, and 69.
This subsection is based on Article 71(c)(2) and the first paragraph
of paragraph 98 of MCM, 1969 (Rev.). See also Articles 60,
61, 64, 65, 66, and 67.
1991 Amendment: The
discussion was amended by adding a reference to subsection (5) of R.C.M.
1113(d). This brings the discussion into accord with the general rule of
R.C.M. 1113(d)(2)(A) that any court-martial sentence to confinement begins
to run from the date it is adjudged.
2008 Amendment. Section (d) has been replaced with a new rule addressing self-executing punishments. The original section (d) has been re-designated as section (e), with no substantive changes to the text.
This section was formerly (d) but was re-designated as (e) in 2008. See section (d) above. Subsection (1) is based on the third paragraph of paragraph 126 a of MCM, 1969 (Rev.). The second paragraph of paragraph
88 d(1) of MCM, 1969 (Rev.) is deleted as unnecessary.
_
1986 Amendment:_ Subsection (1)(B) was added to incorporate the
holding in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595
(1986). The plurality in Ford held that the Constitution
precludes executing a person who lacks the mental capacity to understand
either that he will be executed or why he will be executed. _ See also
_ United States v. Washington, 6 U.S.C.M.A. 114,
119, 19 C.M.R. 240, 245 (1955). The Court also criticized the procedures
specified by Florida law used to determine whether a person lacks such capacity
because the accused was provided no opportunity to submit matters on the
issue of capacity, but the case is unclear as to what procedures would suffice.
Because
of this ambiguity, the drafters elected to provide for a judicial hearing,
with representation for the government and the accused. This is more than
adequate to meet the due process requirements of _Ford v. Wainwright.
_
The word "substantial" is used in the third
sentence to indicate that considerably more credible evidence than merely
an allegation of lack of capacity is required before further inquiry need
be made. _ Ford v. Wainwright,_ 447 U.S. 399, 426, 106 S.Ct.
2595, 2610 (1986) (Powell, J., concurring). The burden of showing the accused's
lack of capacity is on the defense when the issue is before the court for
adjudication. This is consistent with amendments to R.C.M. 909(c)(2) and
R.C.M. 916(k)(3)(A) which shifted to the defense the burden of showing lack
of mental capacity to stand trial and lack of mental responsibility. The
rule also establishes a presumption of capacity and allows limits on the
scope of the sanity board's examination.
Subsection (2)(A) is
based on Articles 14 and 57(b) and paragraph 97 c of MCM,
1969 (Rev.). See also paragraph 126 j of
MCM, 1969 (Rev.). Subsection (2)(B) is based on Article 58(b) and the third
paragraph of paragraph 126 j of MCM, 1969 (Rev.). Subsection
(2)(C) is based on Article 58(a) and paragraph 93 of MCM, 1969 (Rev.). Note
that if the Secretary concerned so prescribes, the convening authority need
not designate the place of confinement. Because the place of confinement
is determined by regulations in some services, the convening authority's
designation is a pro forma matter in such cases. The penultimate sentence
in subsection (2)(C) is based on Article 12 and on paragraph 125 of MCM,
1969 (Rev.). The last sentence in subsection (2)(C) is based on 10 U.S.C. §
_(3) of MCM, 1969 (Rev.).
2010 Amendment. Subsection (2)(A)(iii) was amended to correct an incorrect reference to Article 57(e), which does not exist. It now references the correct section of Article 57a.
1995 Amendment: Subsection
(2)(A)(iii) is new. It is based on the recently enacted Article 57(e).
National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484,
106 Stat. 2315,2505 (1992). See generally Interstate Agreement
on Detainers Act, 18 U.S.C. App. III. It permits a military sentence to
be served consecutively, rather than concurrently, with a civilian or foreign
sentence. The prior subsections (2)(A)(iii) - (iv) are redesignated (2)(A)(iv)
2010 Amendment. Subsection (2)(C) was amended to add the same level or protections to "persons serving with or accompanying an armed force" as members of the armed forces receive.
Subsection (3) is based on paragraph 126 _
h_(3) of MCM, 1969 (Rev.), but it is modified to avoid constitutional
problems. _ See Bearden v. Georgia_, 461 U.S. 660 (1983); _
Tate v. Short_, 401 U.S. 395 (1971); _Williams v. Illinois
_, 399 U.S. 235 (1970). See also _United
States v. Slubowski_, 5 M.J. 882 (N.C.M.R. 1978), aff'd, 7 M.J. 461
(1979); United States v. Vinyard, 3 M.J. 551 (A.C.M.R.), _
pet. denied_, 3 M.J. 207 (1977); _United States v. Donaldson
_, 2 M.J. 605 (N.C.M.R. 1977), aff'd , 5 M.J. 212
(1978); United States v. Martinez, 2 M.J. 1123 (C.G. C.M.R.
1976); United States v. Kehrli, 44 C.M.R. 582 (A.F.C.M.R.
1971), pet. denied, 44 C.M.R. 940 (1972); ABA Standards,
Sentencing Alternatives and Procedures § 18-2.7 (1979).
Subsection
Subsection (5)
is based on the last paragraph of paragraph 125 MCM, 1969 (Rev.).
Paragraph
88 d(3) of MCM, 1969 (Rev.) is deleted based on the amendment
of Articles 57(a) and 71(c)(2) which eliminated the necessity for application
or deferment of forfeitures. Forfeitures always may be ordered executed in
the initial action.
1995 Amendment: Subsection
diminished rations [R.C.M. 1113(d)(9)], as a punishment
imposable by a court-martial, was deleted. Subsection (6) was redesignated
(5).
Subsections (1) and (2) are based on the first paragraph of paragraph
90 a of MCM, 1969 (Rev.). Subsection (3) is based on paragraph
90 e of MCM, 1969 (Rev.). This rule is consistent in purpose
with Fed. R. Crim. P. 32(b)(1).
2008 Amendment. Subsection (a)(4) is new and intended to effectuate self-executing punishments under RCM 1113. Pursuant to this change, a command is not required to issue a supplemental promulgating order for self-executing punishments, as the certification of the appropriate official pursuant to RCM 1113 is all that is required.
Subsection (1) is based on paragraph 90 _ b_(1) of
MCM, 1969 (Rev.) except that the requirement that the supervisory authority,
rather than the convening authority, issue the promulgating order in certain
special courts-martial has been deleted, since action by the supervisory
authority is no longer required. See Article 65. The convening
authority now issues the promulgating order in all cases. _See generally
United States v. Schulthise_, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963)
(actions equivalent to publication). Subsection (2) is based on paragraphs
90 b(2) and 107 of MCM, 1969 (Rev.).
Subsection (1) is based on Appendix 15 of MCM, 1969 (Rev.) but
modifies it insofar as the only item which must be recited verbatim in the
order is the convening authority's action. The charges and specifications
should be summarized to adequately describe each offense, including allegations
which affect the maximum authorized punishments. Cf. Fed.
R. Crim. P. 32(b)(1). See also Form 25, Appendix of Forms,
Fed. R. Crim. P. Subsection (2) is based on the third, fourth, and fifth paragraph
of paragraph 90 a of MCM, 1969 (Rev.) except that reference
is no longer made to action by the supervisory authority. _ See_ Article
1976); United States v. Hurlburt, 1 M.J. 742, 744 (A.F.C.M.R.
1975), rev'd on other grounds, 3 M.J. 387 (C.M.A. 1977).
Subsection
a_ of MCM, 1969 (Rev.).
1986 Amendment: Reference
to "subsequent actions" was changed to "subsequent orders"
to correct an error in MCM, 1984.
1990 Amendment: Subsection
(c)(2) was amended in conjunction with the implementation of findings of
not guilty only by reason of lack of mental responsibility provided for in
Article 50 a, UCMJ (Military Justice Amendments of 1986,
tit. VIII, 802, National Defense Authorization Act for Fiscal Year 1987,
Pub. L. 99-661, 100 Stat. 3905 (1986)).
This subsection is based on the first two paragraphs of paragraph
90 c of MCM, 1969 (Rev.). The second sentence of the first
paragraph of paragraph 90 c is deleted as unnecessary.
This subsection is based on forms at Appendix 15 of MCM, 1969 (Rev.)
and clarifies the authentication of promulgating orders. See
Mil. R. Evid. 902(10). Note that this subsection addresses authentication
of the order, not authentication of copies.
This subsection is based on paragraph 90 d of MCM,
1969 (Rev.). The matters in paragraph 96 of MCM, 1969 (Rev.) are deleted.
These are administrative matters better left to service regulations.
_
1986 Amendment:_ Subsection (b)(2) was amended to clarify that actions
taken subsequent to the initial action may also comprise the supplementary
order. Section (c) was amended to simplify and shorten court-martial orders. _
See_ revisions to Appendix 17.
This subsection is based on Article 66(b).
Subsection (1) is based on Article 69(a). Subsection (2) is based
on Article 64(b)(3) and Article 69(b). Subsection (3) is based on Article
69(b). Subsection (4) is based on Article 69(c). Subsection (b) is similar
to paragraph 103 and the first two paragraphs of paragraph 110A of MCM, 1969
(Rev.) except insofar as the amendments of Articles 61, 64, and 69 dictate
otherwise. See Military Justice Act of 1983, Pub.L. No.
98-209, §§ 4(b), 7(a), (e), 97 Stat. 1393 (1983). The last paragraph
of paragraph 110A of MCM, 1969 (Rev.) was deleted as unnecessary.
_
1986 Amendment:_ Subsection (b)(3)(A) was changed to conform to the
language of Article 69(b), as enacted by the Military Justice Act of 1983,
which precludes review of cases previously reviewed under Article 69(a).
_
1990 Amendment:_ The discussion to subsection (b)(3)(A) was amended
in conjunction with the implementation of Article 50 a,
UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802, National
Defense Authorization Act for Fiscal Year 1987, Pub. L. 99-661, 100
Stat. 3905 (1986)). To find an accused not guilty only by reason of lack
of mental responsibility, the fact-finder made a determination that the accused
was guilty of the elements of the offense charged or of a lesser included
offense but also determined that, because he lacked mental responsibility
at the time of the offense, he could not be punished for his actions. _
See_ R.C.M. 921(c)(4). Although the finding does not subject the
accused to punishment by court-martial, the underlying finding of guilt is
reviewable under this rule. Review, however, does not extend to the determination
of lack of mental responsibility. Since the accused voluntarily raised the
issue and has the burden of proving lack of mental responsibility by clear
and convincing evidence, he has waived any later review of the propriety
of that determination.
1990 Amendment: The date
from which the two year period to file an application under R.C.M. 1201(b)(3)
begins to run was amended to account for cases resulting in a finding of
not guilty only by reason of lack of mental responsibility. Such cases would
not proceed to sentencing but could be the subject of an application under
this rule. As amended, the accused would have two years from the date findings
were announced in which to file an application for review.
_
1995 Amendment:_The Discussion accompanying subsection (1) was amended
to conform with the language of Article 69(a), as enacted by the Military
Justice Amendments of 1989, tit. XIII, sec. 1302(a)(2), National Defense
Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189,
103 Stat. 1352, 1576 (1989).
This subsection is based on Article 74. See _
United States v. Russo_, 11 U.S.C.M.A. 352, 29 C.M.R. 168 (1960); _
United States v. Sood_, 42 C.M.R. 635 (A.C.M.R.), _pet. denied,
_ 42 C.M.R. 356 (1970).
This subsection is based on Article 70(a) and paragraph 102 _
a_ of MCM, 1969 (Rev.).
This subsection is based on Article 70(b) and (c). _See
also_ the first two paragraphs of paragraph 102 b of
MCM, 1969 (Rev.). The penultimate sentence in the rule is based on the penultimate
sentence in the fourth paragraph of paragraph 102 b of MCM,
1969 (Rev.). The last sentence in the fourth paragraph of paragraph 102 _
b_ of MCM, 1969 (Rev.) is deleted as unnecessary. The last sentence
in the rule is new. It is based on practice in Federal civilian courts. _
See Rapp. v. Van Dusen_, 350 F. 2d 806 (3d Cir. 1965); Fed.R. App.
P.21(b). See also Rule 27, Revised Rules of the Supreme
Court of the United States (Supp. IV 1980); _United States v. Haldeman
_, 599 F.2d 31 (D.C. Cir. 1976), cert. denied, 431
U.S. 933 (1977). See generally 9 J. Moore, B. Ward, and J.
Lucas, Moore's Federal Practice Para. 221.03 (2d ed. 1982).
The
first two paragraphs in the discussion modify the third and fourth paragraphs
of paragraph 102 b of MCM, 1969 (Rev.). The Court of Appeals
for the Armed Forces has held that appellate defense counsel is obligated
to assign as error before the Court of Criminal Appeals all arguable issues
unless such issues are, in counsel's professional opinion, clearly frivolous.
In addition, appellate defense counsel must invite the attention of the court
to issues specified by the accused, unless the accused expressly withdraws
such issues, if these are not otherwise assigned as errors. Also, in a petition
for review by the Court of Appeals for the Armed Forces, counsel must, in
addition to errors counsel believes have merit, identify issues which the
accused wants raised. See United States v. Hullum, 15 M.J.
261 (C.M.A. 1983); United States v. Knight, 15 M.J. 195
(C.M.A. 1982); United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). See also United States v. Dupas,
14 M.J. 28 (C.M.A. 1982); _ United States v. Rainey_, 13 M.J.
462, 463 n. 1 (C.M.A. 1982) (Everett, C.J., dissenting). _But see
Jones v. Barnes_, 463 U.S. 745 (1983) (no constitutional requirement
for appointed counsel to raise every nonfrivolous issue requested by client).
The third paragraph in the discussion is based on Article 70(d) and paragraph
102 of MCM, 1969 (Rev.). The fourth paragraph in the discussion is based
on the establishment of review by the Supreme Court of certain decisions
of the Court of Appeals for the Armed Forces. See Article
67(h) and 28 U.S.C. § 1259; Military Justice Act of 1983, Pub.L. No.
98-209, § 10, 97 Stat. 1393 (1983). The fifth paragraph in the
discussion is based on United States v. Patterson, 22 U.S.C.M.A.
157, 46 C.M.R. 157 (1973). See also _United States
_, 11 U.S.C.M.A. 306, 29 C.M.R. 122 (1960).
This subsection is based on Article 66(a). The discussion is based
on Article 66(a), (f), (g), and (h). See also the first paragraph
of paragraph 100 a and paragraph 100 d of
MCM, 1969 (Rev.).
This subsection is based on Article 66(b) and the third sentence
of Article 69(a). Interlocutory appeals by the Government are treated in
R.C.M. 908. The third through the fifth paragraphs in the discussion are
based on Articles 59 and 66(c) and (d) and are taken from the second and
third paragraphs of paragraph 100 a and the first paragraph
of paragraph 100 b of MCM, 1969 (Rev.). _See also
_ United States v. Darville, 5 M.J. 1 (C.M.A. 1978).
The last sentence in the first paragraph is based on _United States
_, 8 M.J. 763 (A.C.M.R.), aff'd, 9 M.J. 417 (C.M.A.
1980). See also Corley v. Thurman, 3 M.J.
192 (C.M.A. 1977). The sixth paragraph in the discussion is based on _
Dettinger v. United States_, 7 M.J. 216 (C.M.A. 1979); 28 U.S.C.
§ 1651(a). See also _United States v. LaBella
, 15 M.J. 228 (C.M.A. 1983); United States v. Caprio_,
12 M.J. 30 (C.M.A. 1981); United States v. Redding, 11 M.J.
100 (C.M.A. 1981); United States v. Bogan, 13 M.J. 768 (A.C.M.R.
1982). The establishment of a statutory right of the Government to appeal
certain rulings at trial might affect some of these precedents. _
See United States v. Weinstein_, 411 F.2d 622 (2d. Cir. 1975),_
cert. denied_, 422 U.S. 1042 (1976).
Subsection (1) is based on Article 67(b)(2). See also
paragraph 100 b(2) and the first sentence of paragraph 100 _
c_(1)(a) of MCM, 1969 (Rev.). See also _
United States v. Leslie_, 11 M.J. 131 (C.M.A. 1981); _ United
States v. Clay_, 10 M.J. 269 (C.M.A. 1981).
Subsection
is consistent with paragraph 100 b(3) of MCM, 1969 (Rev.).
Subsection
It allows each service to prescribe specific procedures for service of Court
of Criminal Appeals decisions appropriate to its own organization and needs,
in accordance with the increased flexibility allowed under the amendment
of Article 67(c). See Military Justice Amendments of 1981,
Pub.L. 97-81, 95 Stat. 1090.
Subsection (4) is based on
the first paragraph of paragraph 105 b of MCM, 1969 (Rev.). _
See also_ Article 74.
Because R.C.M. 1203 is organized somewhat
differently than paragraph 100 of MCM, 1969 (Rev.), the actions described
in subsection (c) of this rule apply to cases referred by the Judge Advocate
General to the Court of Criminal Appeals under Article 69 as well as Article
extent that they are applicable.
1986 Amendment: Subsection
5 is based on the second paragraph of paragraph 124 of MCM, 1969 (Rev.).
The fourth sentence is based, in part, on _United States v. Williams
, 18 M.J. 533 (A.F.C.M.R. 1984). See also
United States v. Korzeniewski_, 7 U.S.C.M.A. 314, 22 C.M.R.104(1956); _
United States v. Bledsoe_, 16 M.J. 977 (A.F.C.M.R. 1983). The provision
assigning the burden of proof is consistent with amendments to R.C.M. 909(c)(2)
and R.C.M. 916(k)(3)(A) which shifted to the defense the burden of showing
lack of mental capacity to stand trial and lack of mental responsibility.
_
1998 Amendment:_ The change to the rule implements the creation of
Article 57a, UCMJ, contained in section 1123 of the National Defense Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 463-64 (1996).
A sentence to confinement may be deferred by the Secretary concerned when
it has been set aside by a Court of Criminal Appeals and a Judge Advocate
General certifies the case to the Court of Appeals for the Armed Forces for
further review under Article 67(a)(2). Unless it can be shown that the accused
is a flight risk or a potential threat to the community, the accused should
be released from confinement pending the appeal. _See Moore v. Akins
_, 30 M.J. 249 (C.M.A. 1990).
This subsection is based on Article 67(c) (as amended, _
see_ Military Justice Amendments of 1981, Pub.L. 97-81, §
5, 95 Stat. 1088-89) and on the first paragraph of paragraph 100 _
c_ (1)(a) of MCM, 1969 (Rev.) (see Exec. Order No.
12340 (Jan. 20, 1982)). The discussion is based on Article 67(b) and on the
second paragraph of paragraph 100 c(1)(a) of MCM, 1969 (Rev.).
Subsection (1) is based on the first sentence of paragraph 100 _
c_(1)(b) of MCM, 1969 (Rev.). See Article 71(b).
Subsection (2) is based on the last sentence of paragraph 100c(1)(a) of MCM,
1969 Rev.). See Article 66(e).
This subsection clarifies that the procedures for Government appeals
of interlocutory rulings at trial are governed by R.C.M. 908.
This subsection is based on the ninth sentence of Article 67(a)(1),
on Article 67(b), and on the second sentence in Article 69. It generally
repeats the first paragraph of paragraph 101 of MCM, 1969 (Rev.) except insofar
as that paragraph provided for mandatory review by the Court of Appeals for
the Armed Forces of cases affecting general and flag officers. _See
_ Article 67(b)(1), as amended by the Military Justice Act of 1983,
Pub.L. No. 98-209, § 7(d), 97 Stat. 1393 (1983). The first paragraph
in the discussion is based on Article 67(a), (d), and (e), which were repeated
in the second and third paragraphs of paragraph 101 of MCM, 1969 (Rev.).
The second paragraph in the discussion is based on _United States
§ 1651(a). See also Noyd v. Bond,
395 U.S. 683, 695 n. 7 (1969); United States v. Augenblick,
393 U.S. 348 (1969); Dobzynski v. Green 16 M.J. 84 (C.M.A.
1983); Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983); _
United States v. Labella_, 15 M.J. 228 (C.M.A. 1983); _Cooke
12 M.J. 145 (C.M.A. 1981); Cooke v. Ellis, 12 M.J. 17 (C.M.A.
1981); Vorbeck v. Commanding Officer, 11 M.J. 480 (C.M.A.
1981); United States v. Redding, 11 M.J. 100 (C.M.A. 1981); _
United States v. Strow_, 11 M.J. 75 (C.M.A. 1981); _Stewart
_, 3 M.J. 192 (C.M.A. 1977); McPhail v. United States,
1 M.J. 457 (C.M.A. 1976); Brookins v. Cullins, 23 U.S.C.M.A.
216, 49 C.M.R. 5 (1974); Chenoweth v. Van Arsdall, 22 U.S.C.M.A.
183, 46 C.M.R. 5 (1970); United States v. Snyder, 18 U.S.C.M.A.
480, 40 C.M.R. 192 (1969); United States v. Bevilacqua,
18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968); Gale v. United States,
17 U.S.C.M.A. 40, 37 C.M.R. 304 (1967).
Armed Forces.
Subsection (1) is based on the last paragraph of paragraph 102 _
b_ of MCM, 1969 (Rev.). Note that if the case reached the Court of
Criminal Appeals by an appeal by the Government under R.C.M. 908, the accused
would already have detailed defense counsel. Subsection (2) is based on C.M.A.R.
19(a)(3).
Subsection (1) substantially repeats Article 67(f) as did its predecessor,
the fourth paragraph of paragraph 101 of MCM, 1969 (Rev.) except that paragraph
did not address possible review by the Supreme Court. _ See_ Article
67(h); 28 U.S.C. § 1259. Subsections (2) and (3) are based on Article
71(a) and (b) and on the last paragraph of paragraph 101 of MCM, 1969 (Rev.).
Subsection (4) is new and reflects the possibility of review by the Supreme
Court. See Article 67(h); 28 U.S.C. § 1259. _
See also_ Article 71.
This rule is new and is based on Article 67(h); 28 U.S.C. §§
1259, 2101. See Military Justice Act of 1983, Pub.L. No.
98-209, § 10, 97 Stat. 1393 (1983).
This subsection is based on the first sentence of Article 71(b).
Subsection (1) is based on Article 74(a). Subsection (2) is based
on Article 74(b). Subsection (3) is based on the second paragraph of paragraph
105 b of MCM, 1969 (Rev.). See Exec. Order
No. 10498 (Nov. 4, 1953), 18 Fed.Reg. 7003. The reference in paragraph 105 _
a_ of MCM, 1969 (Rev.) to Secretarial authority to commute sentences
in deleted here as unnecessary. See Article 71(b).
This rule is based on the first sentence of Article 71(a). Paragraph
105 a of MCM, 1969 (Rev.), which stated the President's
power to commute sentences, is deleted. Such a statement is unnecessary. _
See also_ U.S. Const. art. II, § 2, cl. 1; _Schick v.
Reed_, 419 U.S. 256 (1974).
Introduction. This rule is based on Article 75.
This subsection is based on paragraph 110 d of
MCM, 1969 (Rev.). It has been modified based on the modification of the procedure
for executing sentences in new trials. See Analysis, R.C.M.
here. They repeated Article 75(b) and (c), which are referred to in the
discussion.
This subsection is based on paragraph 106 of MCM, 1969 (Rev.).
This subsection is based on Article 71(c), as amended, _
see_ Military Justice Act of 1983, Pub.L. No. 98-209, §
5(e)(1), 97 Stat. 1393 (1983). See also Article 64. Note
that subsection (2)(B) qualifies (2)(A) even if the officer exercising general
court-martial jurisdiction over the accused (or that officer's successor)
approves the findings and sentence, the conviction is not final if review
by the Judge Advocate General is required. See Article 64(c)(3);
R.C.M. 1201(b)(2). As to the finality of an acquittal or disposition not
amounting to findings of guilty, see Article 44; R.C.M.
905(g). See also Grafton v. United States,
206U.S. 333 (1907).
This subsection is taken from Article 76 and paragraph 108 of MCM,
1969 (Rev.). See also Article 69(b).
This rule is based on Article 73 and is based on paragraphs 109
and 110 of MCM, 1969 (Rev.). Some matters in those paragraphs (_e.g.,
_ paragraphs 110 a(2) and 109 d)
are covered in other rules. See R.C.M. 810; 1209. The second
sentence of paragraph 109 d(1) has been deleted as unnecessary
and potentially confusing. Subsections (f)(2) and (3) adequately describe
the standards for a new trial. The rule is generally consistent with Fed. R. Crim. P. 33, except insofar as Article 73 provides otherwise. As to subsection
(f), see also United States v. Bacon, 12
M.J. 489 (C.M.A. 1982); _ United States v. Thomas_, 11 M.J.
135 (C.M.A. 1981). With respect to the second example under subsection (f)(3)
of this rule, it should be noted that if the information concealed by the
prosecution was specifically requested by the defense, a different standard
may apply. See United States v. Agurs, 427 U.S. 97 (1976); _
Brady v. Maryland_, 373 U.S. 83 (1963). See also _
United States v. Horsey_, 6 M.J. 112 (C.M.A. 1979). The second sentence
of paragraph 110 f of MCM, 1969 (Rev.) has been deleted. _
See_ Analysis, R.C.M. 1107(f)(3)(D)(i).
Subsections (h)(3),
(4), and (5) have been modified to permit the convening authority of a new
trial to take action in the same way as in a rehearing; i.e., the convening
authority may, when otherwise authorized to do so (see R.C.M. 1113), order
the sentence executed. Forwarding a new trial to the Judge Advocate General
is not required just because the case was a new trial. The special circumstances
of a new trial do not necessitate such different treatment in post-trial
action.
1998 Amendment: R.C.M. 1210(a) was amended
to clarify its application consistent with interpretations of Fed. R. Crim.
P. 33 that newly discovered evidence is never a basis for a new trial of
the facts when the accused has pled guilty. _See United States v.
Lambert_ , 603 F.2d 808, 809 (10th Cir. 1979); _see also United
States v. Gordon_, 4 F.3d 1567, 1572 n.3 (10th Cir. 1993), _
cert. denied_, 510 U.S. 1184 (1994); _United States v. Collins
_ , 898 F.2d 103 (9th Cir. 1990)(per curiam); _United States
States_, 290 F.2d 217 (5th Cir. 1961). _But see United States
J.)(newly discovered evidence could be used to attack guilty plea on appeal
in era prior to the guilty plea examination mandated by _United States
Article 73 authorizes a petition for a new trial of the facts when there
has been a trial. When there is a guilty plea, there is no trial. See R.C.M.
910(j). The amendment is made in recognition of the fact that it is difficult,
if not impossible, to determine whether newly discovered evidence would have
an impact on the trier of fact when there has been no trier of fact and no
previous trial of the facts at which other pertinent evidence has been adduced.
Additionally, a new trial may not be granted on the basis of newly discovered
evidence unless "[t]he newly discovered evidence,
if considered by a court-martial in the light of all other pertinent evidence,
would probably produce a substantially more favorable result for the accused."
R.C.M. 1210(f)(2)(C).
The first sentence is based on Article 16(3). In the second sentence
the express authority for the Secretary concerned to provide for the summary
court-martial to be from a different service than the accused is new. Paragraph
4 g(2) of MCM, 1969 (Rev.) included this statement: "However,
a summary court-martial will be a member of the same armed force as the accused."
The fact that this statement was included in a subparagraph entitled "Joint
command or joint task force" left unclear what rule applied in other
commands. The Working Group elected to clarify the situation by stating a
general prohibition against detailing a summary court-martial from a service
different from that of the accused, but allowing the service Secretaries
to provide exceptions. This is based on the desirability of having the summary
court-martial be from the same service as the accused, but recognizes that
under some circumstances, as where a small unit of one service is collocated
with another service, greater flexibility is needed, especially in order
to comply with the policy in the third sentence of this subsection. The expression
of policy in the third sentence is based on paragraph 4 c of
MCM, 1969 (Rev.). The fourth sentence is based on Article 24(b) and the fifth
sentence of the first paragraph of paragraph 5 c of MCM,
1969 (Rev.). The last sentence is based on the last sentence of the first
paragraph of paragraph 5 c of MCM, 1969 (Rev.), but has
been modified to clarify that the summary court-martial may be from outside
the command of the summary court-martial convening authority.
2005 Amendment: Subsection (a) was amended to clarify that summary courts-martial convened by a combatant or joint commander are to be conducted in accordance with the implementing regulations and procedures of the service of which the accused is a member.
This subsection is based on paragraph 79 a of MCM,
1969 (Rev.). The rule does not restrict other lawful functions which a summary
court-martial may perform under the Code. See, e.g., Article
10 U.S.C. § 4712 or 10 U.S.C. § 9712 is not affected by these rules.
See also R.C.M. 101 and 201(a).
This subsection is based on the first sentence of Article 20 and
the first sentence of paragraph 16 a of MCM, 1969 (Rev.).
The reference to Chapter II was added to bring attention to other jurisdictional
standards which may apply to summary courts-martial.
2015 Amendment: This subsection was revised to implement Section 1705 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring on or after 24 June 2014.
This subsection is based on paragraph 16 b of MCM,
1969 (Rev.), and Article 20.
The code does not provide a right to counsel at a summary court-martial
(Articles 27 and 38.). The Supreme Court of the United States held in _
Middendorf v. Henry_, 425 U.S. 25 (1976), that an accused is not
entitled to counsel in summary courts-martial, and that confinement may be
adjudged notwithstanding the failure to provide the accused with counsel.
In so holding, the Court distinguished summary courts-martial from civilian
criminal proceedings at which counsel is required. _See Argersigner
Hamlin_, 407 U.S. 25 (1972). Although the issue in _Middendorf
Henry, supra_, was whether counsel must be provided to an accused
at a summary court-martial, the Court's opinion clearly indicates that there
is no right to any counsel (including retained counsel) at summary courts-martial.
It is within the discretion of the convening authority to detail, or otherwise
make available, a military attorney to represent the accused at a summary
court-martial.
This rule does not provide a right to consult with
counsel prior to a summary court-martial. There is no constitutional or statutory
basis for such a right. United States v. Mack, 9 M.J. 300,
320-21 (C.M.A. 1980). A requirement for such consultation, although desirable
under some circumstances, is unfeasible under others wherein it impedes the
purposes of summary courts-martial by significantly delaying the proceedings.
At present, the admissibility of a summary court-martial without a prior
opportunity to consult with counsel in subsequent courts-martial has not
been fully resolved. _United States v. Mack, supra; United States
Kuehl_, 11 M.J. 126 (C.M.A. 1981).
This subsection is based on Article 46 and 47 and paragraphs 79
b and 115 of the MCM, 1969 (Rev.).
This subsection is new and recognizes the implicit authority of
the service secretaries to provide additional rules, such as those governing
the exercise of summary court-martial jurisdiction.
This subsection is based on Article 24(a) and paragraph 5 _
c_ of MCM, 1969 (Rev.).
This subsection clarifies that a separate written order is not
necessary to convene a summary court-martial; this may be done directly on
the charge sheet. Because there is little difference between summary, special,
and general courts-martial with respect to the initiation and forwarding
of charges, these procedures are simply referred to in the rule.
This rule is based on Article 20 and the second and third sentences
of paragraph 16 a of MCM, 1969 (Rev.). Arraignment ends
the right to object because arraignment is the point at which the accused
is "brought to trial" within the meaning of Article 20.
This subsection is based on paragraphs 79 c and
33 d of MCM, 1969 (Rev.).
Paragraph 79 a of MCM, 1969 (Rev.), suggested that
the summary court-martial use the general court-martial trial guide. However,
the general court-martial trial guide is inadequate for the person who ordinarily
conducts the summary court-martial. The trial guide in Appendix 9 of this
Manual was drafted to assist the lay presiding officer at summary courts-martial
and incorporate the rules prescribed in this chapter.
Subsection
requirement to inform the accused of the date of referral was added to subsection
(1)(B) to assist the accused in making motions to dismiss or for other relief.
Subsection (1)(E) is intended to more fully inform the accused of the scope
of the evidence (testimonial, documentary, and physical) expected to be introduced.
Subsection (1)(F) is new and is designed to assist the accused in making
motions and presenting evidence in defense and in extenuation and mitigation.
Subsection (1)(G) is new and is designed to assure the accused that no evidence,
including statements previously made to the officer detailed to conduct the
summary court-martial, will be considered unless admitted in accordance with
the Military Rules of Evidence. Subsection (1)(H) is new. Subsection (1)(L)
is expanded to assure the accused that the exercise of rights guaranteed
under the Fifth Amendment and Article 31 will not be held against the accused.
Subsection
(2)(A) is based on Article 20 and the second paragraph of paragraph 79 _
d_(1) of MCM, 1969 (Rev.).
Subsection (2)(B) is based
on paragraph 79 d(2) of MCM, 1969 (Rev.).
Subsection
(2)(C) is new. MCM, 1969 (Rev.) did not clarify the timing of motions in
summary courts-martial.
Subsection (2)(D)(ii) is new and designed
to standardize the guilty plea inquiry by referring the summary court-martial
to R.C.M. 909 which prescribed the inquiry for summary, special, and general
courts-martial. Subsections (2)(D)(i) and (iii) through (v) are based on
paragraph 79 _ d_(2) of MCM, 1969 (Rev.). The provision in
paragraph 79 _ d_(2) which provided for hearing evidence on
the offense(s) in a guilty plea case is omitted here because this procedure
is covered in R.C.M. 1001(b)(4).
Subsection (2)(E)(i) is based
on Mil. R. Evid. 101 and 1101. Subsections (2)(E)(ii) through (iv) are based
on paragraph 79 d (3) of MCM, 1969 (Rev.).
Subsections
(2)(F)(i) through (iii) are based on paragraph 79 d(4) of
MCM, 1969 (Rev.). Note that the summary court-martial may consider otherwise
admissible records from the accused's personnel file under R.C.M. 1001(b)(2).
This was not permitted under MCM, 1969 (Rev.) before the amendment of paragraph
75 on 1 August 1981. See Exec. Order No. 12315 (July 29,
1981). Subsection (2)(F)(iv) is new and fulfills the summary court-martial's
post-trial responsibility to protect the interests of the accused by informing
the accused of post-trial rights.
Subsection (2)(F)(v) is new
and designed to inform the convening authority of any suspension recommendation
and deferment request before receipt of the record of trial. Subsection (2)(F)(vi)
modifies paragraph 79 _ d_(4) of MCM, 1969 (Rev.). It recognizes
the custodial responsibility of the summary court-martial over an accused
sentenced to confinement until the accused is delivered to the commander
or the commander's designee. It does not address the subsequent disposition
of the accused, as this is a prerogative of the commander.
This rule is based on paragraphs 79 e and 91 _
c_ of MCM, 1969 (Rev.) insofar as they prescribed that the record
of trial of a summary court-martial will consist of a notation of key events
at trial and insofar as they permitted the convening or higher authority
to require additional matters in the record. Additional requirements may
be established by the Secretary concerned, the convening authority, or other
competent authority. The modification of the format of the charge sheet
(see Appendix 4) eliminated it as the form for the record
of trial of a summary court-martial. A separate format is now provided at
Appendix 15.
This subsection is based on paragraphs 79 e and
91_c_ of MCM, 1969 (Rev.).
_1986 Amendment:
_ R.C.M. 1305(b)(2) was amended to delete the requirement that the
record of trial in summary courts-martial reflect the number of previous
convictions considered. The Committee concluded that this requirement had
only slight utility and also noted that DD Form 2329, which serves as the
record of trial in summary courts-martial, has no entry for this information.
The Committee also noted that the Services each have requirements for retaining
documents introduced at summary courts-martial with the record of trial.
2008 Amendment. Section (b) was amended by changing the first sentence to no longer require the preparation of copies of the record of trial, mandating instead that the summary court-martial prepare a "written record of trial." This amendment was made in conjunction with the addition of the definition of the word "writing" in R.C.M. 103(20).
This subsection is based on paragraph 79 e of MCM,
1969 (Rev.).
_ 2004 Amendment:_ This subsection
was amended to require that summary courts-martial authenticate the original
record of trial, as is currently the procedure for special and general courts-martial.
2008 Amendment. Section (c) was amended to conform to the new authentication requirements outlined in RCM 1104. Pursuant to this change, the summary court-martial may authenticate a record of trial by electronic signature.
Subsection (1) is based on Article 60(b)(2). Subsection (2) is based
on the third paragraph of paragraph 91_c_ of MCM, 1969 (Rev.).
Subsection (3) is self-explanatory.
2008 Amendment. Subsection (d)(1)(A) was amended to conform to the changes set forth in RCM 1104 by allowing a summary court-martial to effectuate service by sending a record of trial electronically.
2001 Amendment: Subsection
(d)(2) was amended to strike the reference to "subsection (e)(1)"
and insert a reference to "subsection (d)(1)" to reflect the
1995 amendment that redesignated R.C.M. 1305(e) as R.C.M. 1305(d).
This subsection is based on Article 60(b).Cf.
Article 38(c).
This subsection is based on Article 64.
This subsection is based on Article 69 and refers to the detailed
provisions governing such requests for review in R.C.M. 1201.
The Military Rules of Evidence, promulgated in 1980 as
Chapter XXVII of the Manual for Courts-Martial, United States, 1969 (Rev.
ed.), were the product of a two year effort participated in by the General
Counsel of the Department of Defense, the United States Court of Military
Appeals, the Military Departments, and the Department of Transportation
(the Department under which the Coast Guard was operating at that time).
The Rules were drafted by the Evidence Working Group of the Joint Service
Committee on Military Justice, which consisted of Commander James Pinnell,
JAGC, U.S. Navy, then Major John Bozeman, JAGC, U.S. Army (from April 1978
until July 1978), Major Fredric Lederer, JAGC, U.S. Army (from August 1978),
Major James Potuk, U.S. Air Force, Lieutenant Commander Tom Snook, U.S. Coast
Guard, and Mr. Robert Mueller and Ms. Carol Wild Scott of the United States
Court of Military Appeals. Mr. Andrew Effron represented the Office of the
General Counsel of the Department of Defense on the Committee. The draft
rules were reviewed and, as modified, approved by the Joint Service Committee
on Military Justice. Aspects of the Rules were reviewed by the Code Committee
as well. See Article 67(g). The Rules were approved by the
General Counsel of the Department of Defense and forwarded to the White House
via the Office of Management and Budget which circulated the Rules to the
Departments of Justice and Transportation.
The original Analysis was prepared primarily by Major Fredric Lederer, U.S. Army, of the Evidence Working Group of the Joint Service Committee on Military Justice and was
approved by the Joint Service Committee on Military Justice and reviewed
in the Office of the General Counsel of the Department of Defense. The Analysis
presents the intent of the drafting committee; seeks to indicate the source
of the various changes to the Manual, and generally notes when substantial
changes to military law result from the amendments. This Analysis is not,
however, part of the Executive Order modifying the present Manual nor does
it constitute the official views of the Department of Defense, the Department
of Homeland Security, the Military Departments, or of the United States Court
of Military Appeals.
The Analysis does not identify technical
changes made to adapt the Federal Rules of Evidence to military use. Accordingly,
the Analysis does not identify changes made to make the Rules gender neutral
or to adapt the Federal Rules to military terminology by substituting, for
example, "court members" for "jury" and "military
judge" for "court." References within the Analysis to "the
1969 Manual" and "MCM, 1969 (Rev.)" refer to the Manual
for Courts-Martial, 1969 (Rev. ed.) (Executive Order 11,476, as amended by
Executive Order 11,835 and Executive Order 12,018) as it existed prior to
the effective date of the 1980 amendments. References to "the prior
law" and "the prior rule" refer to the state of the law
as it existed prior to the effective date of the 1980 amendments. References
to the "Federal Rules of Evidence Advisory Committee" refer to
the Advisory Committee on the Rules of Evidence appointed by the Supreme
Court, which prepared the original draft of the Federal Rules of Evidence.
During
the Manual revision project that culminated in promulgation of the Manual
for Courts-Martial, 1984 (Executive Order 12473), several changes were made
in the Military Rules of Evidence, and the analysis of those changes was
placed in Appendix 21. Thus, it was intended that this Appendix would remain
static. In 1985, however, it was decided that changes in the analysis of
the Military Rules of Evidence would be incorporated into this Appendix as
those changes are made so that the reader need consult only one document
to determine the drafters' intent regarding the current rules. Changes are
made to the Analysis only when a rule is amended. Changes to the Analysis
are clearly marked, but the original Analysis is not changed. Consequently,
the Analysis of some rules contains analysis of language subsequently deleted
or amended.
In addition, because this Analysis expresses the intent
of the drafters, certain legal doctrines stated in this Analysis may have
been overturned by subsequent case law. This Analysis does not substitute
for research about current legal rules.
Several changes were
made for uniformity of style with the remainder of the Manual. Only the first
word in the title of a rule is capitalized. The word "rule" when
used in text to refer to another rule, was changed to "Mil. R. Evid."
to avoid confusion with the Rules for Courts-Martial. "Code"
is used in place of Uniform Code of Military Justice. "Commander"
is substituted for "commanding officer" and "officer in
charge." _ See_ R.C.M. 103(5). Citations to the United
States Code were changed to conform to the style used elsewhere. "Government"
is capitalized when used as a noun to refer to the United States Government.
In addition, several cross-references to paragraphs in MCM, 1969 (Rev.) were
changed to indicate appropriate provisions in this Manual.
With
these exceptions, however, the Military Rules of Evidence were not redrafted.
Consequently, there are minor variations in style or terminology between
the Military Rules of Evidence and other parts of the Manual. Where the same
subject is treated in similar but not identical terms in the Military Rules
of Evidence and elsewhere, a different meaning or purpose should not be inferred
in the absence of a clear indication in the text or the analysis that this
was intended.
2013 Amendment. On December 1, 2011, the Federal Rules of Evidence (Fed. R. Evid.) were amended by restyling the rules to make them simpler to understand and use, without changing the substantive meaning of any rule.
After considering these changes to the Federal Rules, the committee recommended significant changes to the Military Rules of Evidence (Mil. R. Evid.) in 2012. This rewrite was implemented by Executive Order 13643 of May 15, 2013. In addition to recommending stylistic changes to harmonize these rules with the Federal Rules, the committee also recommended changes to ensure that the rules addressed the admissibility of evidence, rather than the conduct of the individual actors. Like the Federal Rules of Evidence, these rules ultimately dictate whether evidence is admissible and, therefore, it is appropriate to phrase the rules with admissibility as the focus, rather than a focus on the actor (i.e., the commanding officer, military judge, accused, etc.).
The rules were also reformatted to achieve clearer presentation. The committee recommended use of indented paragraphs with headings and hanging indents to allow the practitioner to distinguish between different subsections of the rules. The restyled rules also reduce the use of inconsistent terms that are intended to mean the same thing but may, because of the inconsistent use, be misconstrued by the practitioner to mean something different.
With most of its recommended changes, the committee made special effort to avoid any style improvement that might result in a substantive change in the application of the rule. However, in some rules, the committee recommended rewriting the rule with the express purpose to change the substantive content of the rule in order to affect the application of the rule in practice. In the analysis of each rule, the committee clearly indicates whether the changes are intended to be substantive or merely stylistic. The reader is encouraged to consult the analysis of each rule if he or she has questions as to whether the committee intended that a change to the rule have an effect on a ruling of admissibility.
Rule 101(a) is taken generally from Federal Rule of Evidence 101.
It emphasizes that these Rules are applicable to summary as well as to special
and general courts-martial. See "Rule of Construction."
Rule 101(c), infra. Rule 1101 expressly indicates that the
rules of evidence are inapplicable to investigative hearings under Article
32, proceedings for pretrial advice, search authorization proceedings, vacation
proceedings, and certain other proceedings. Although the Rules apply to sentencing,
they may be "relaxed" under Rule 1101(c) and R.C.M. 1001(c)(3).
The
limitation in subdivision (a) applying the Rules to courts-martial is intended
expressly to recognize that these Rules are not applicable to military commissions,
provost courts, and courts of inquiry unless otherwise required by competent
authority. See Part I, Para. 2 of the Manual. The Rules,
however, serve as a "guide" for such tribunals. Id.
The
Military Rules of Evidence are inapplicable to proceedings conducted pursuant
to Article 15 of the Uniform Code of Military Justice.
The decisions
of the United States Court of Appeals for the Armed Forces and of the Courts
of Criminal Appeals must be utilized in interpreting these Rules. While specific
decisions of the Article III courts involving rules which are common both
to the Military Rules and the Federal Rules should be considered very persuasive,
they are not binding; see Article 36 of the Uniform Code
of Military Justice. It should be noted, however, that a significant policy
consideration in adopting the Federal Rules of Evidence was to ensure, where
possible, common evidentiary law.
Rule 101(b) is taken from Para. 137 of MCM, 1969 (Rev.) which had
its origins in Article 36 of the Uniform Code of Military Justice. Rule 101(a)
makes it clear that the Military Rules of Evidence are the primary source
of evidentiary law for military practice. Notwithstanding their wide scope,
however, Rule 101(b) recognizes that recourse to secondary sources may occasionally
be necessary. Rule 101(b) prescribes the sequence in which such sources shall
be utilized.
Rule 101(b)(1) requires that the first such source
be the "rules of evidence generally recognized in the trial of criminal
cases in the United States District courts." To the extent that a Military
Rule of Evidence reflects an express modification of a Federal Rule of Evidence
or a federal evidentiary procedure, the President has determined that the
unmodified Federal Rule or procedure is, within the meaning of Article 36(a),
either not "practicable" or is "contrary to or inconsistent
with" the Uniform Code of Military Justice. Consequently, to the extent
to which the Military Rules do not dispose of an issue, the Article III Federal
practice when practicable and not inconsistent or contrary to the Military
Rules shall be applied. In determining whether there is a rule of evidence
"generally recognized," it is anticipated that ordinary legal
research shall be involved with primary emphasis being placed upon the published
decisions of the three levels of the Article III courts.
Under
Rule 1102, which concerns amendments to the Federal Rules of Evidence, no
amendment to the Federal Rules shall be applicable to courts-martial until
180 days after the amendment's effective date unless the President shall
direct its earlier adoption. Thus, such an amendment cannot be utilized as
a secondary source until 180 days has passed since its effective date or
until the President had directed its adoption, whichever occurs first. An
amendment will not be applicable at any time if the President so directs.
It
is the intent of the Committee that the expression, "common law"
found within Rule 101(b)(2) be construed in its broadest possible sense.
It should include the federal common law and what may be denominated military
common law. Prior military cases may be cited as authority under Rule 101(b)(2)
to the extent that they are based upon a present Manual provision which has
been retained in the Military Rules of Evidence or to the extent that they
are not inconsistent with the "rules of evidence generally recognized
in the trial of criminal cases in the United States District courts,"
deal with matters "not otherwise prescribed in this Manual or these
rules," and are "practicable and not inconsistent with or contrary
to the Uniform Code of Military justice or this Manual."
Rule 101(c) is intended to avoid unnecessary repetition of the
expressions, "president of a special court-martial without a military
judge" and "summary court-martial officer." "Summary
court-martial officer" is used instead of "summary court-martial"
for purposes of clarity. A summary court-martial is considered to function
in the same role as a military judge notwithstanding possible lack of legal
training. As previously noted in Para. 137, MCM, 1969 (Rev.), "a summary
court-martial has the same discretionary power as a military judge concerning
the reception of evidence." Where the application of these Rules in
a summary court-martial or a special court-martial without a military judge
is different from the application of the Rules in a court-martial with a
military judge, specific reference has been made.
Disposition of present Manual. That part of Para. 137, MCM, 1969 (Rev.), not
reflected in Rule 101 is found in other rules, see, e.g., Rules
104, 401, 403. The reference in Para. 137 to privileges arising out of treaty
or executive agreement was deleted as being unnecessary. _See generally
_ Rule 501.
2013 Amendment. In subsection (a), the phrase "including summary courts-martial" was removed because Rule 1101 already addresses the applicability of these rules to summary courts-martial. In subsection (b), the word "shall" was changed to "will" in accordance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as "shall" and "should" because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. See Fed. R. Evid. 101, Restyled Rules Committee Note. In recommending this change, the committee did not intend to change any result in any ruling on evidence admissibility.
The Discussion section was added to this rule to alert the practitioner that discussion sections, which previously did not appear in Part III of the Manual, are included in this edition to elucidate the committee's understanding of the rules. The discussion sections do not have the force of law and may be changed by the committee without an Executive Order, as warranted by changes in applicable case law. The discussion sections should be considered treatise material and are non-binding on the practitioner.
The committee also recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 102 is taken without change from Federal Rule of Evidence 102
and is without counterpart in MCM, 1969 (Rev.). It provides a set of general
guidelines to be used in construing the Military Rules of Evidence. It is,
however, only a rule of construction and not a license to disregard the Rules
in order to reach a desired result.
Rule 103(a) is taken from the Federal Rule with a number of changes.
The first, the use of the language, "the ruling materially prejudices
a substantial right of a party" in place of the Federal Rule's "a
substantial right of party is affected" is required by Article 59(a)
of the Uniform Code of Military Justice. Rule 103(a) comports with present
military practice.
The second significant change is the addition
of material relating to constitutional requirements and explicitly states
that errors of constitutional magnitude may require a higher standard than
the general one required by Rule 103(a). For example, the harmless error
rule, when applicable to an error of constitutional dimensions, prevails
over the general rule of Rule 103(a). Because Section III of these Rules
embodies constitutional rights, two standards of error may be at issue; one
involving the Military Rules of Evidence, and one involving the underlying
constitutional rule. In such a case, the standard of error more advantageous
to the accused will apply.
Rule 103(a)(1) requires that a timely
motion or objection generally be made in order to preserve a claim of error.
This is similar to but more specific than prior practice. In making such
a motion or objection, the party has a right to state the specific grounds
of the objection to the evidence. Failure to make a timely and sufficiently
specific objection may waive the objection for purposes of both trial and
appeal. In applying Federal Rule 103(a), the Article III courts have interpreted
the Rule strictly and held the defense to an extremely high level of specificity. _
See_, e.g., United States v. Rubin, 609 F.2d 51,
61-63 (2d Cir. 1979) (objection to form of witness's testimony did not raise
or preserve an appropriate hearsay objection); _United States v. O'Brien
_, 601 F.2d 1067 (9th Cir. 1979) (objection that prosecution witness
was testifying from material not in evidence held inadequate to raise or
preserve an objection under Rule 1006). As indicated in the Analysis of Rule
802, Rule 103 significantly changed military law insofar as hearsay is concerned.
Unlike present law under which hearsay is absolutely incompetent, the Military
Rules of Evidence simply treat hearsay as being inadmissible upon adequate
objection; see Rules 803, 103(a). Note in the context of
Rule 103(a) that R.C.M. 801(a)(3) (Discussion) states: "The parties
are entitled to reasonable opportunity to properly present and support their
contentions on any relevant matter."
An "offer of
proof" is a concise statement by counsel setting forth the substance
of the expected testimony or other evidence.
Rule 103(a) prescribes
a standard by which errors will be tested on appeal. Although counsel at
trial need not indicate how an alleged error will "materially prejudice
a substantial right" in order to preserve error, such a showing, during
or after the objection or offer, may be advisable as a matter of trial practice
to further illuminate the issue for both the trial and appellate bench.
_
2004 Amendment:_ Subdivision (a)(2) was modified based on the
amendment to Fed. R. Evid. 103(a)(2), effective 1 December 2000, and is virtually
identical to its Federal Rule counterpart. It is intended to provide that
where an advance ruling is definitive, a party need not renew an objection
or offer of proof at trial; otherwise, renewal is required.
and (c) Hearing of members- Rule 103(b)
and (c) are taken from the Federal Rules with minor changes in terminology
to adapt them to military procedure.
Rule 103(d) is taken from the Federal Rule with a minor change of
terminology to adapt it to military practice and the substitution of "materially
prejudices" substantial rights of "affecting" substantial
rights to conform it to Article 59(a) of the Uniform Code of Military Justice.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 104(a) is taken generally from the Federal Rule. Language in
the Federal Rule requiring that admissibility shall be determined by the
"court, subject to the provisions of subdivision (b)" has been
struck to ensure that, subject to Rule 1008, questions of admissibility are
solely for the military judge and not for the court-members. The deletion
of the language is not intended, however, to negate the general interrelationship
between subdivisions (a) and (b). When relevancy is conditioned on the fulfillment
of a condition of fact, the military judge shall "admit it upon, or
subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition."
Pursuant to language
taken from Federal Rule of Evidence 104(a), the rules of evidence, other
than those with respect to privileges, are inapplicable to "preliminary
questions concerning the qualification of a person to be a witness, the existence
of a privilege, the admissibility of evidence...." These exceptions
are new to military law and may substantially change military practice. The
Federal Rule has been modified, however, by inserting language relating to
applications for continuances and determinations of witness availability.
The change, taken from MCM, 1969 (Rev.), Para. 137, is required by the worldwide
disposition of the armed forces which makes matters relating to continuances
and witness availability particularly difficult, if not impossible, to resolve
under the normal rules of evidence- particularly the hearsay rule.
A
significant and unresolved issue stemming from the language of Rule 104(a)
is whether the rules of evidence shall be applicable to evidentiary questions
involving constitutional or statutory issues such as those arising under
Article 31. Thus it is unclear, for example, whether the rules of evidence
are applicable to a determination of the voluntariness of an accused's statement.
While the Rule strongly suggests that rules of evidence are not applicable
to admissibility determinations involving constitutional issues, the issue
is unresolved at present.
Rule 104(b) is taken from the Federal Rule except that the following
language had been added: "A ruling on the sufficiency of evidence to
support a finding of fulfillment of a condition of fact is the sole responsibility
of the military judge." This material was added in order to clarify
the rule and to explicitly preserve contemporary military procedure, Para.
57, MCM, 1969 (Rev.). Under the Federal Rule, it is unclear whether and to
what extent evidentiary questions are to be submitted to the jury as questions
of admissibility. Rule 104(b) has thus been clarified to eliminate any possibility,
except as required by Rule 1008, that the court members will make an admissibility
determination. Failure to clarify the rule would produce unnecessary confusion
in the minds of the court members and unnecessarily prolong trials. Accordingly,
adoption of the language of the Federal Rules without modification is impracticable
in the armed forces.
Rule 104(c) is taken generally from the Federal Rule. Introductory
material has been added because of the impossibility of conducting a hearing
out of the presence of the members in a special court-martial without a
military judge. "Statements of an accused" has been used in lieu
of "confessions" because of the phrasing of Article 31 of the
Uniform Code of Military Justice, which has been followed in Rules 301-306.
Rule 104(d) is taken without change from the Federal Rule. Application
of this rule in specific circumstances is set forth in Rule 304(f), 311(f)
and 321(e).
Rule 104(e) is taken without change from the Federal Rule.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 105 is taken without change from the Federal Rule. In view
of its requirement that the military judge restrict evidence to its proper
scope "upon request," it overrules _United States v.
Grunden_, 2 M.J. 116 (C.M.A. 1977) (holding that the military judge
must sua sponte instruct the members as to use of evidence
of uncharged misconduct) and related cases insofar as they _require
_ the military judge to sua sponte instruct the
members. See e.g., S. SALTZBURG & K. REDDEN, _
FEDERAL RULES OF EVIDENCE MANUAL_ 50 (2d ed. 1977); _United
States v. Sangrey_, 586 F.2d 1315 (9th Cir. 1978); _United
States v. Barnes_, 586 F.2d 1052 (5th Cir. 1978); _United
States v. Bridwell_, 583 F.2d 1135 (10th Cir. 1978); _but
see United States v. Ragghianti_, 560 F.2d 1376 (9th Cir. 1977).
This is compatible with the general intent of both the Federal and Military
Rules in that they place primary if not full responsibility upon counsel
for objecting to or limiting evidence. Note that the Rule 306, dealing with
statements of co-accused, is more restrictive and protective than Rule 105.
The military judge may, of course, choose to instruct _sua sponte
_ but need not do so. Failure to instruct sua sponte could
potentially require a reversal only if such failure could be considered "plain
error" within the meaning of Rule 103(d). Most failures to instruct_
sua sponte,_ or to instruct, cannot be so considered in light of
current case law.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 201(a) provides that Rule 201 governs judicial notice of adjudicative
facts. In so doing, the Rule replaced MCM, 1969 (Rev.), Para. 147 _
a_. The Federal Rules of Evidence Advisory Committee defined adjudicative
facts as "simply the facts of the particular case" and distinguished
them from legislative facts which it defined as "those which have relevance
to legal reasoning and the lawmaking process, whether in the formulation
of a legal principle or ruling by a judge or court or in the enactment of
a legislative body," reprinted in S. SALTZBURG & K. REDDEN, _
FEDERAL RULES OF EVIDENCE MANUAL_ 63 (2d ed. 1977). The distinction
between the two types of facts, originated by Professor Kenneth Davis, can
on occasion be highly confusing in practice and resort to any of the usual
treatises may be helpful.
Rule 201(b) was taken generally from the Federal Rule. The limitation
with FED. R. EVID. 201(b)(1) to facts known "within the territorial
jurisdiction of the trial court" was replaced, however, by the expression,
"generally known universally, locally, or in the area, pertinent to
the event." The worldwide disposition of the armed forces rendered
the original language inapplicable and impracticable within the military
environment. Notice of signatures, appropriate under Para. 147 _ a
_, MCM, 1969 (Rev.), will normally be inappropriate under this Rule.
Rule 902(4) & (10) will, however, usually yield the same result as under
Para. 147 a.
When they qualify as adjudicative
facts under Rule 201, the following are examples of matters of which judicial
notice may be taken:
The ordinary division of time into years,
months, weeks and other periods; general facts and laws of nature, including
their ordinary operations and effects; general facts of history; generally
known geographical facts; such specific facts and propositions of generalized
knowledge as are so universally known that they cannot reasonably be the
subject of dispute; such facts as are so generally known or are of such common
notoriety in the area in which the trial is held that they cannot reasonably
be the subject of dispute; and specific facts and propositions of generalized
knowledge which are capable of immediate and accurate determination by resort
to easily accessible sources of reasonable indisputable accuracy.
While the first sentence of the subdivision is taken from the Federal
Rule, the second sentence is new and is included as a result of the clear
implication of subdivision (e) and of the holding in _Garner v. Louisiana
_, 368 U.S. 157, 173-74 (1961). In Garner, the Supreme
Court rejected the contention of the State of Louisiana that the trial judge
had taken judicial notice of certain evidence stating that:
There
is nothing in the records to indicate that the trial judge did in fact take
judicial notice of anything. To extend the doctrine of judicial notice ...
would require us to allow the prosecution to do through argument to this
Court what it is required by due process to do at the trial, and would be
to turn the doctrine into a pretext for dispensing with a trial of the facts
of which the court is taking judicial notice, not only does he not know upon
what evidence he is being convicted, but, in addition, he is deprived of
any opportunity to challenge the deductions drawn from such notice or to
dispute the notoriety or truth of the facts allegedly relied upon. 368 U.S.
at 173
Rule 201(d) provides that the military judge shall take notice when
requested to do so by a party who supplies the military judge with the necessary
information. The military judge must take judicial notice only when the evidence
is properly within this Rule, is relevant under Rule 401, and is not inadmissible
under these Rules.
Subdivisions (e), (f) and (g) of Rule 201 are taken from the Federal
Rule without change.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence. Former subsection (d) was subsumed into subsection (c) and the remaining subsections were renumbered accordingly. In recommending these changes, the committee did not intend to change any result in any ruling on evidence admissibility.
In general. Rule 201A is new. Not addressed by
the Federal Rules of Evidence, the subject matter of the Rule is treated
as a procedural matter in the Article III courts; see e.g., FED
R. CRIM. P. 26.1. Adoption of a new evidentiary rule was thus required. Rule
201A is generally consistent in principle with Para. 147 a,
MCM, 1969 (Rev.).
Domestic law. Rule 201A(a)
recognizes that law may constitute the adjudicative fact within the meaning
of Rule 201(a) and requires that when that is the case, i.e., insofar
as a domestic law is a fact that is of consequence to the determination of
the action, the procedural requirements of Rule 201 must be applied. When
domestic law constitutes only a legislative fact, see the
Analysis to Rule 201(a), the procedural requirements of Rule 201 may be utilized
as a matter of discretion. For purposes of this Rule, it is intended that
"domestic law" include: treaties of the United States; executive
agreements between the United States and any State thereof, foreign country
or international organization or agency; the laws and regulations pursuant
thereto of the United States, of the District of Columbia, and of a State,
Commonwealth, or possession; international law, including the laws of war,
general maritime law and the law of air and space; and the common law. This
definition is taken without change from Para. 147 a except
that references to the law of space have been added. "Regulations"
of the United States include regulations of the armed forces.
When
a party requests that domestic law be noticed, or when the military judge _
sua sponte_ takes such notice, a copy of the applicable law should
be attached to the record of trial unless the law in question can reasonably
be anticipated to be easily available to any possible reviewing authority.
_
1984 Amendment:_ Subsection (a) was modified in 1984 to clarify that
the requirements of Mil. R. Evid. 201(g) do not apply when judicial notice
of domestic law is taken. Without this clarification, Mil. R. Evid. 201A
could be construed to require the military judge to instruct the members
that they could disregard a law which had been judicially noticed. This problem
was discussed in _ United States v. Mead_, 16 M.J. 270 (C.M.A.1983).
_
Foreign law._ Rule 201A(b) is taken without significant change from
FED R. CRIM. P 26.1 and recognizes that notice of foreign law may require
recourse to additional evidence including testimony of witnesses. For purposes
of this Rule, it is intended that "foreign law" include the laws
and regulations of foreign countries and their political subdivisions and
of international organizations and agencies. Any material or source received
by the military judge for use in determining foreign law, or pertinent extracts
therefrom, should be included in the record of trial as an exhibit.
2013 Amendment. Former Rule 201A was renumbered so that it now appears as Rule 202. In previous editions, Rule 202 did not exist and therefore no other rules were renumbered as a result of this change. The phrase "in accordance with Mil. R. Evid. 104" was added to subsection (b) to clarify that Rule 104 controls the military judge's relevancy determination.
The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
The definition of "relevant evidence" found within Rule
401 is taken without change from the Federal Rule and is substantially similar
in effect to that used by Para. 137, MCM, 1969 (Rev.). The Rule's definition
may be somewhat broader than the 1969 Manual's, as the Rule defines as relevant
any evidence that has "any tendency to make the existence of any
fact. . . more probable or less probable than it would be without the evidence"
while the 1969 Manual defines as "not relevant" evidence "too
remote to have any appreciable probative value. . ." To the extent that
the 1969 Manual's definition includes considerations of "legal relevance,"
those considerations are adequately addressed by such other Rules as Rules
403 and 609. See, E. IMWINKELRIED, P. GIANNELLI, F. GILLIGAN
& F. LEDERER, CRIMINAL EVIDENCE 62-65 (1979) (which, after defining
"logical relevance" as involving only probative value, states
at 63 that "under the rubric of [legal relevance,]
the courts have imposed an additional requirement that the item's probative
value outweighs any attendant probative dangers.") The Rule is similar
to the 1969 Manual in that it abandons any reference to "materiality"
in favor of a single standard of "relevance." Notwithstanding
the specific terminology used, however, the concept of materiality survives
in the Rule's condition that to be relevant evidence must involve a fact
"which is of consequence to the determination of the action."
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 402 is taken without significant change from the Federal Rule.
The Federal Rule's language relating to limitations imposed by "the
Constitution of the United States, by Act of Congress, by these rules, or
by other rules prescribed by the Supreme Court pursuant to statutory authority"
has been replaced by material tailored to the unique nature of the Military
Rules of Evidence. Rule 402 recognizes that the Constitution may apply somewhat
differently to members of the armed forces than to civilians, and the Rule
deletes the Federal Rule's reference to "other rules prescribed by
the Supreme Court" because such Rules do not apply directly in courts-martial. _
See_ Rule 101(b)(2).
Rule 402 provides a general standard
by which irrelevant evidence is always inadmissible and by which relevant
evidence is generally admissible. Qualified admissibility of relevant evidence
is required by the limitations in Sections III and V and by such other Rules
as 403 and 609 which intentionally utilize matters such as degree of probative
value and judicial efficiency in determining whether relevant evidence should
be admitted.
Rule 402 is not significantly different in its effect
from Para. 137 of the 1969 Manual which it replaces, and procedures used
under the 1969 Manual in determining relevance generally remain valid. Offers
of proof are encouraged when items of doubtful relevance are proffered, and
it remains possible, subject to the discretion of the military judge, to
offer evidence "subject to later connection." Use of the latter
technique, however, must be made with great care to avoid the possibility
of bringing inadmissible evidence before the members of the court.
It
should be noted that Rule 402 is potentially the most important of the new
rules. Neither the Federal Rules of Evidence nor the Military Rules of Evidence
resolve all evidentiary matters; see Rule 101(b). When specific
authority to resolve an evidentiary issue is absent, Rule 402's clear result
is to make relevant evidence admissible.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
waste of time
Rule 403 is taken without change from the Federal Rule of Evidence.
The Rule incorporates the concept often known as "legal relevance," see the Analysis to Rule 401, and provides that evidence
may be excluded for the reasons stated notwithstanding its character as relevant
evidence. The Rule vests the military judge with wide discretion in determining
the admissibility of evidence that comes within the Rule.
If
a party views specific evidence as being highly prejudicial, it may be possible
to stipulate to the evidence and thus avoid its presentation to the court
members. United States v. Grassi, 602 F.2d 1192 (5th Cir.
1979), a prosecution for interstate transportation of obscene materials,
illustrates this point. The defense offered to stipulate that certain films
were obscene in order to prevent the jury from viewing the films, but the
prosecution declined to join in the stipulation. The trial judge sustained
the prosecution's rejection of the stipulation and the Fifth Circuit upheld
the judge's decision. In its opinion, however, the Court of Appeals adopted
a case by case balancing approach recognizing both the importance of allowing
probative evidence to be presented and the use of stipulations as a tool
to implement the policies inherent in Rule 403. Insofar as the latter is
concerned, the court expressly recognized the power of a Federal district
judge to compel the prosecution to accept a defense tendered stipulation.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 404(a) replaces 1969 Manual Para. 138 _
f_ and is taken without substantial change from the Federal Rule.
Rule 404(a) provides, subject to three exceptions, that character evidence
is not admissible to show that a person acted in conformity therewith.
Rule
404(a)(1) allows only evidence of a pertinent trait of character of the accused
to be offered in evidence by the defense. This is a significant change from
Para. 138 f of the 1969 Manual which also allows
evidence of "general good character" of the accused to be received
in order to demonstrate that the accused is less likely to have committed
a criminal act. Under the new rule, evidence of general good character is
inadmissible because only evidence of a specific trait is acceptable. It
is the intention of the Committee, however, to allow the defense to introduce
evidence of good military character when that specific trait is pertinent.
Evidence of good military character would be admissible, for example, in
a prosecution for disobedience of orders. The prosecution may present evidence
of a character trait only in rebuttal to receipt in evidence of defense character
evidence. This is consistent with prior military law.
Rule 404(a)(2)
is taken from the Federal Rule with minor changes. The Federal Rule allows
the prosecution to present evidence of the character trait of peacefulness
of the victim "in a homicide case to rebut evidence that the victim
was the first aggressor." Thus, the Federal Rule allows prosecutorial
use of character evidence in a homicide case in which self-defense has been
raised. The limitation to homicide cases appeared to be inappropriate and
impracticable in the military environment. All too often, assaults involving
claims of self-defense take place in the densely populated living quarters
common to military life. Whether aboard ship or within barracks, it is considered
essential to allow evidence of the character trait of peacefulness of the
victim. Otherwise, a substantial risk would exist of allowing unlawful assaults
to go undeterred. The Federal Rule's use of the expression "first aggressor"
was modified to read "an aggressor," as substantive military
law recognizes that even an individual who is properly exercising the right
of self-defense may overstep and become an aggressor. The remainder of Rule
404(a)(2) allows the defense to offer evidence of a pertinent trait of character
of the victim of a crime and restricts the prosecution to rebuttal of that
trait.
Rule 404(a)(3) allows character evidence to be used to
impeach or support the credibility of a witness pursuant to Rules 607-609.
_
2004 Amendment:_ Subdivision (a) was modified based on the amendment
to Fed. R. Evid. 404(a), effective 1 December 2000, and is virtually identical
to its Federal Rule counterpart. It is intended to provide a more balanced
presentation of character evidence when an accused attacks the victim's character.
The accused opens the door to an attack on the same trait of his own character
when he attacks an alleged victim's character, giving the members an opportunity
to consider relevant evidence about the accused's propensity to act in a certain
manner. The words "if relevant" are added to subdivision (a)(1)
to clarify that evidence of an accused's character under this rule must meet
the requirements of Mil. R. Evid. 401 and Mil. R. Evid. 403. The drafters
believe this addition addresses the unique use of character evidence in courts-martial.
The amendment does not permit proof of the accused's character when the accused
attacks the alleged victim's character as a witness under Rule 608 or 609,
nor does it affect the standards for proof of character by evidence of other
sexual behavior or sexual offenses under Rules 412-415.
Rule 404(b) is taken without change from the Federal Rule,
and is substantially similar to the 1969 Manual rule found in Para. 138 _
g_. While providing that evidence of other crimes, wrongs, or acts
is not admissible to prove a predisposition to commit a crime, the Rule expressly
permits use of such evidence on the merits when relevant to another specific
purpose. Rule 404(b) provides examples rather than a list of justifications
for admission of evidence of other misconduct. Other justifications, such
as the tendency of such evidence to show the accused's consciousness of guilt
of the offense charged, expressly permitted in Manual Para. 138 _
g_(4), remain effective. Such a purpose would, for example, be an
acceptable one. Rule 404(b), like Manual Para. 138 g,
expressly allows use of evidence of misconduct not amounting to conviction.
Like Para. 138 _ g_, the Rule does not, however,
deal with use of evidence of other misconduct for purposes of impeachment. _
See_ Rules 608-609. Evidence offered under Rule 404(b) is subject
to Rule 403.
1994 Amendment. The amendment
to Mil. R. Evid. 404(b) was based on the 1991 amendment to Fed. R. Evid.
404(b). The previous version of Mil. R. Evid. 404(b) was based on the now
superseded version of the Federal Rule. This amendment adds the requirement
that the prosecution, upon request by the accused, provide reasonable notice
in advance of trial, or during trial if the military judge excuses pretrial
notice on good cause shown, of the general nature of any such evidence it
intends to introduce at trial. Minor technical changes were made to the language
of the Federal Rule so that it conforms to military practice.
2013 Amendment. The word "alleged" was added to references to the victim throughout this rule. Stylistic changes were also made to align it with the Federal Rules of Evidence, but they were not intended to change any result in any ruling on evidence admissibility.
2015 Amendment: This rule was revised to implement Section 536 of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.
Rule 405(a) is taken without change from the Federal Rule. The first
portion of the Rule is identical in effect with the prior military rule found
in Para. 138 f(1) of the 1969 Manual. An individual testifying
under the Rule must have an adequate relationship with the community
(see Rule 405(c)), in the case of reputation, or with the given
individual in the case of opinion, in order to testify. The remainder of Rule
405(a) expressly permits inquiry or cross-examination "into relevant
specific instances of conduct." This is at variance with prior military
practice under which such an inquiry was prohibited. See Para. 138 f(2), MCM, 1969 (Rev.) (character of the accused).
Reputation evidence is exempted from the hearsay rule, Rule 803(21).
Rule 405(b) is taken without significant change from the Federal
Rule. Reference to "charge, claim, or defense" has been replaced
with "offense or defense" in order to adapt the rule to military
procedure and terminology.
Rule 405(c) is not found within the Federal Rules and is taken
verbatim from material found in Para. 146_b_ of the 1969 Manual.
Use of affidavits or other written statements is required due to the world
wide disposition of the armed forces which makes it difficult if not impossible
to obtain witnesses-particularly when the sole testimony of a witness
is to be a brief statement relating to the character of the accused. This
is particularly important for offenses committed abroad or in a combat zone,
in which case the only witnesses likely to be necessary from the United States
are those likely to be character witnesses. The Rule exempts statements used
under it from the hearsay rule insofar as the mere use of an affidavit or
other written statement is subject to that rule.
Rule 405(d) is not found within the Federal Rules of Evidence and
has been included because of the unique nature of the armed forces. The definition
of "reputation" is taken generally from 1969 Manual Para. 138
f(1) and the definition of "community" is an
expansion of that now found in the same paragraph. The definition of "community"
has been broadened to add "regardless of size" to indicate that
a party may proffer evidence of reputation within any specific military organization,
whether a squad, company, division, ship, fleet, group, or wing, branch,
or staff corps, for example. Rule 405(d) makes it clear that evidence may
be offered of an individual's reputation in either the civilian or military
community or both.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 406 is taken without change from the Federal Rule. It is similar
in effect to Para. 138_h_ of the 1969 Manual. It is the intent
of the Committee to include within Rule 406's use of the word, "organization,"
military organizations regardless of size. _ See_ Rule 405
and the Analysis to that Rule.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 407 is taken from the Federal Rules without change, and has
no express equivalent in the 1969 Manual.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 408 is taken from the Federal Rules without change, and has
no express equivalent in the 1969 Manual.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 409 is taken from the Federal Rules without change. It has
no present military equivalent and is intended to be applicable to courts-martial
to the same extent that is applicable to civilian criminal cases. Unlike
Rules 407 and 408 which although primarily applicable to civil cases are
clearly applicable to criminal cases, it is arguable that Rule 409 may not
apply to criminal cases as it deals only with questions of "liability"-normally
only a civil matter. The Rule has been included in the Military Rules to
ensure its availability should it, in fact, apply to criminal cases.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 411 is taken from the Federal Rule without change. Although
it would appear to have potential impact upon some criminal cases,_
e.g.,_ some negligent homicide cases, its actual application to
criminal cases is uncertain. It is the Committee's intent that Rule 411 be
applicable to courts-martial only to the extent that it is applicable to
criminal cases.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 412 is taken from the Federal Rules. Although substantially
similar in substantive scope to Federal Rule of Evidence 412, the application
of the Rule has been somewhat broadened and the procedural aspects of the
Federal Rule have been modified to adapt them to military practice.
Rule
412 is intended to shield victims of sexual assaults from the often embarrassing
and degrading cross-examination and evidence presentations common to prosecutions
of such offenses. In so doing, it recognizes that the prior rule, which it
replaces, often yields evidence of at best minimal probative value with great
potential for distraction and incidentally discourages both the reporting
and prosecution of many sexual assaults. In replacing the unusually extensive
rule found in Para. 153 b (2)(b), MCM, 1969 (Rev.), which
permits evidence of the victim's "unchaste" character regardless
of whether he or she has testified, the Rule will significantly change prior
military practice and will restrict defense evidence. The Rule recognizes,
however, in Rule 412(b)(1), the fundamental right of the defense under the
Fifth Amendment of the Constitution of the United States to present relevant
defense evidence by admitting evidence that is "constitutionally required
to be admitted." Further, it is the Committee's intent that the Rule
not be interpreted as a rule of absolute privilege. Evidence that is constitutionally
required to be admitted on behalf of the defense remains admissible notwithstanding
the absence of express authorization in Rule 412(a). It is unclear whether
reputation or opinion evidence in this area will rise to a level of constitutional
magnitude, and great care should be taken with respect to such evidence.
Rule
412 applies to a "nonconsensual sexual offense" rather than only
to "rape or assault with intent to commit rape" as prescribed
by the Federal Rule. The definition of "nonconsensual sexual offense"
is set forth in Rule 412(e) and "includes rape, forcible sodomy, assault
with intent to commit rape or forcible sodomy, indecent assault, and attempts
to commit such offenses." This modification to the Federal Rule resulted
from a desire to apply the social policies behind the Federal Rule to the
unique military environment. Military life requires that large numbers of
young men and women live and work together in close quarters which are often
highly isolated. The deterrence of sexual offenses in such circumstances
is critical to military efficiency. There is thus no justification for limiting
the scope of the Rule, intended to protect human dignity and to ultimately
encourage the reporting and prosecution of sexual offenses, only to rape
and/or assault with intent to commit rape.
Rule 412(a) generally
prohibits reputation or opinion evidence of an alleged victim of a nonconsensual
sexual offense.
Rule 412(b)(1) recognizes that evidence of a victim's
past sexual behavior may be constitutionally required to be admitted. Although
there are a number of circumstances in which this language may be applicable,_
see,_ S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL
92-93 (2d ed. Supp. 1979) (giving example of potential constitutional
problems offered by the American Civil Liberties Union during the House
hearings on Rule 412), one may be of particular interest. If an individual
has contracted for the sexual services of a prostitute and subsequent to
the performance of the act the prostitute demands increased payment on pain
of claiming rape, for example, the past history of that person will likely
be constitutionally required to be admitted in a subsequent prosecution in
which the defense claims consent to the extent that such history is relevant
and otherwise admissible to corroborate the defense position. Absent such
peculiar circumstances, however, the past sexual behavior of the alleged
victim, not within the scope of Rule 412(b)(2), is unlikely to be admissible
regardless of the past sexual history. The mere fact that an individual is
a prostitute is not normally admissible under Rule 412.
Evidence
of past false complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this rule and is not objectionable when
otherwise admissible.
Rule 412(c) provides the procedural mechanism
by which evidence of past sexual behavior of a victim may be offered. The
Rule has been substantially modified from the Federal Rule in order to adapt
it to military practice. The requirement that notice be given not later than
fifteen days before trial has been deleted as being impracticable in view
of the necessity for speedy disposition of military cases. For similar reasons,
the requirement for a written motion has been omitted in favor of an offer
of proof, which could, of course, be made in writing, at the discretion of
the military judge. Reference to hearings in chambers has been deleted as
inapplicable; a hearing under Article 39(a), which may be without spectators,
has been substituted. The propriety of holding a hearing without spectators
is dependent upon its constitutionality which is in turn dependent upon the
facts of any specific case.
Although Rule 412 is not _
per se_ applicable to such pretrial procedures as Article 32 and
Court of Inquiry hearings, it may be applicable via Rule 303 and Article
31(c). See the Analysis to Rule 303.
It should
be noted as a matter related to Rule 412 that the 1969 Manual's prohibition
in Para. 153 a of convictions for sexual offenses that rest
on the uncorroborated testimony of the alleged victim has been deleted. Similarly,
an express hearsay exception for fresh complaint has been deleted as being
unnecessary. Consequently, evidence of fresh complaint will be admissible
under the Military Rule only to the extent that it is either nonhearsay, _
see_ Rule 801(d)(1)(B), or fits within an exception to the hearsay
rule. See subdivisions (1), (2), (3), (4), and (24) of
Rule 803.
1993 Amendment. R.C.M. 405(i) and Mil.
R. Evid. 1101(d) were amended to make the provisions of Rule 412 applicable
at pretrial investigations. Congress intended to protect the victims of nonconsensual
sex crimes at preliminary hearings as well as at trial when it passed Fed.
R. Evid. 412. See Criminal Justice Subcommittee of the House
Judiciary Committee Report, 94th Cong., 2d Session, July 1976.
_
1998 Amendment._ The revisions to Rule 412 reflect changes made to
Federal Rule of Evidence 412 by section 40141 of the Violent Crime Control
and Law Enforcement Act of 1994, Pub L. No. 103-322, 108 Stat. 1796, 1918-19
(1994). The purpose of the amendments is to safeguard the alleged victim
against the invasion of privacy and potential embarrassment that is associated
with public disclosure of intimate sexual details and the infusion of sexual
innuendo into the factfinding process.
The terminology "alleged
victim" is used because there will frequently be a factual dispute
as to whether the sexual misconduct occurred. Rule 412 does not, however,
apply unless the person against whom the evidence is offered can reasonably
be characterized as a "victim of alleged sexual misconduct."
The
term "sexual predisposition" is added to Rule 412 to conform
military practice to changes made to the Federal Rule. The purpose of this
change is to exclude all other evidence relating to an alleged victim of
sexual misconduct that is offered to prove a sexual predisposition. It is
designed to exclude evidence that does not directly refer to sexual activities
or thoughts but that the accused believes may have a sexual connotation for
the factfinder. Admission of such evidence would contravene Rule 412's objectives
of shielding the alleged victim from potential embarrassment and safeguarding
the victim against stereotypical thinking. Consequently, unless an exception
under (b)(1) is satisfied, evidence such as that relating to the alleged
victim's mode of dress, speech, or lifestyle is inadmissible.
In
drafting Rule 412, references to civil proceedings were deleted, as these
are irrelevant to courts-martial practice. Otherwise, changes in procedure
made to the Federal Rule were incorporated, but tailored to military practice.
The Military Rule adopts a 5-day notice period, instead of the 14-day period
specified in the Federal Rule. Additionally, the military judge, for good
cause shown, may require a different time for such notice or permit notice
during trial. The 5-day period preserves the intent of the Federal Rule that
an alleged victim receive timely notice of any attempt to offer evidence
protected by Rule 412, however, given the relatively short time period between
referral and trial, the 5-day period is deemed more compatible with courts-martial
practice.
Similarly, a closed hearing was substituted for the
in camera hearing required by the Federal Rule. Given the nature of the
in camera procedure used in Military Rule of Evidence 505(i)(4), and that
an in camera hearing in the district courts more closely resembles a closed
hearing conducted pursuant to Article 39(a), the latter was adopted as better
suited to trial by courts-martial. Any alleged victim is afforded a reasonable
opportunity to attend and be heard at the closed Article 39(a) hearing.
The closed hearing, combined with the new requirement to seal the motion,
related papers, and the record of the hearing, fully protects an alleged
victim against invasion of privacy and potential embarrassment.
2007 Amendment: This amendment is intended to aid practitioners in applying the balancing test of Mil. R. Evid. 412. Specifically, the amendment clarifies: (1) that under Mil. R. Evid. 412, the evidence must be relevant for one of the purposes highlighted in subdivision (b); (2) that in conducting the balancing test, the inquiry is whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim's privacy; and (3) that even if the evidence is admissible under Mil. R. Evid. 412, it may still be excluded under Mil. R. Evid. 403. The proposed changes highlight current practice. See U.S. v. Banker, 60 M.J. 216, 223 (2004) ("It would be illogical if the judge were to evaluate evidence 'offered by the accused' for unfair prejudice to the accused. Rather, in the context of this rape shield statute, the prejudice in question is, in part, that to the privacy interests of the alleged victim). See also Sanchez, 44 M.J. at 178 ("[I]n determining admissibility there must be a weighing of the probative value of the evidence against the interest of shielding the victim's privacy").
Moreover, the amendment clarifies that Mil. R. Evid. 412 applies in all cases involving a sexual offense wherein the person against whom the evidence is offered can reasonably be characterized as a "victim of the alleged sexual offense." Thus, the rule applies to: "consensual sexual offense," "nonconsensual sexual offenses;" sexual offenses specifically proscribed under the U.C.M.J., e.g., rape, aggravated sexual assault, etc.; those federal sexual offenses DoD is able to prosecute under clause 3 of Article 134, U.C.M.J., e.g., 18 U.S.C. § 2252A (possession of child pornography); and state sexual offenses DoD is able to assimilate under the Federal Assimilative Crimes Act (18 U.S.C. § 13).
In 2011, the Court of Appeals for the Armed Forces expressed concern with the constitutionality of the balancing test from Rule 412(c)(3) as amended in 2007. See United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011).
2015 Amendment: Rule 412(c)(2) was revised in accordance with L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Section 534(c) of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.
1998 Amendment. This amendment is intended
to provide for more liberal admissibility of character evidence in criminal
cases of sexual assault where the accused has committed a prior act of sexual
assault.
Rule 413 is nearly identical to its Federal Rule counterpart.
A number of changes were made, however, to tailor the Rule to military practice.
First, all references to Federal Rule 415 were deleted, as it applies only
to civil proceedings. Second, military justice terminology was substituted
where appropriate (e.g. accused for defendant, court-martial for case).
Third, the 5-day notice requirement in Rule 413(b) replaced a 15-day notice
requirement in the Federal Rule. A 5-day requirement is better suited to
military discovery practice. This 5-day notice requirement, however, is
not intended to restrict a military judge's authority to grant a continuance
under R.C.M. 906(b)(1). Fourth, Rule 413(d) has been modified to include
violations of the Uniform Code of Military Justice. Also, the phrase "without
consent" was added to Rule 413(d)(1) to specifically exclude the introduction
of evidence concerning adultery or consensual sodomy. Last, all incorporation
by way of reference was removed by adding subsections (e), (f), and (g).
The definitions in those subsections were taken from title 18, United States
Code §§ 2246(2)-2246(3), and 513(c)(5), respectively.
Although
the Rule states that the evidence "is admissible," the drafters
intend that the courts apply Rule 403 balancing to such evidence. Apparently,
this also was the intent of Congress. The legislative history reveals that
"the general standards of the rules of evidence will continue to apply,
including the restrictions on hearsay evidence and the court's authority
under evidence rule 403 to exclude evidence whose probative value is substantially
outweighed by its prejudicial effect." 140 Cong. Rec. S. 12,990 (daily
ed. Sept. 20, 1994) (Floor Statement of the Principal Senate Sponsor, Senator
Bob Dole, Concerning the Prior Crimes Evidence Rules for Sexual Assault and
Child Molestation Cases).
When "weighing the probative value
of such evidence, the court may, as part of its rule 403 determination, consider
proximity in time to the charged or predicate misconduct; similarity to the
charged or predicate misconduct; frequency of the other acts; surrounding
circumstances; relevant intervening events; and other relevant similarities
or differences." Report of the Judicial Conference of the United States
on the Admission of Character Evidence in Certain Sexual Misconduct Cases.
_
2002 Amendment:_ Federal Rule of Evidence 415, which created a similar
character evidence rule for civil cases, became applicable to the Military
Rules of Evidence on January 6, 1996, pursuant to Rule 1102. Federal Rule
415, however, is no longer applicable to the Military Rules of Evidence,
as stated in Section 1 of Executive Order, 2002 Amendments to the Manual
for Court-Martial, United States, (2000). Rule 415 was deleted because it
applies only to federal civil proceedings.
2013 Amendment. The committee recommended changing the time requirement in subsection (b) to align with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, the committee recommended revising subsection (d) to align with the Federal Rules of Evidence.
The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
1998 Amendment. This amendment is intended
to provide for more liberal admissibility of character evidence in criminal
cases of child molestation where the accused has committed a prior act of
sexual assault or child molestation.
Rule 414 is nearly identical
to its Federal Rule counterpart. A number of changes were made, however,
to tailor the Rule to military practice. First, all references to Federal
Rule 415 were deleted, as it applies only to civil proceedings. Second,
military justice terminology was substituted where appropriate (e.g. accused
for defendant, court-martial for case). Third, the 5-day notice requirement
in Rule 414(b) replaced a 15-day notice requirement in the Federal Rule.
A 5-day requirement is better suited to military discovery practice. This
5-day notice requirement, however, is not intended to restrict a military
judge's authority to grant a continuance under R.C.M. 906(b)(1). Fourth,
Rule 414(d) has been modified to include violations of the Uniform Code of
Military Justice. Last, all incorporation by way of reference was removed
by adding subsections (e), (f), (g), and (h). The definitions in those
subsections were taken from title 18, United States Code §§ 2246(2),
2246(3), 2256(2), and 513(c)(5), respectively.
Although the Rule
states that the evidence "is admissible," the drafters intend
that the courts apply Rule 403 balancing to such evidence. Apparently, this
was also the intent of Congress. The legislative history reveals that "the
general standards of the rules of evidence will continue to apply, including
the restrictions on hearsay evidence and the court's authority under evidence
rule 403 to exclude evidence whose probative value is substantially outweighed
by its prejudicial effect." 140 Cong. Rec. S. 12,990 (daily ed. Sept.
20, 1994) (Floor Statement of the Principal Senate Sponsor, Senator Bob Dole,
Concerning the Prior Crimes Evidence Rules for Sexual Assault and Child Molestation
Cases).
When "weighing the probative value of such evidence,
the court may, as part of its rule 403 determination, consider proximity
in time to the charged or predicate misconduct; similarity to the charged
or predicate misconduct; frequency of the other acts; surrounding circumstances;
relevant intervening events; and other relevant similarities or differences."
Report of the Judicial Conference of the United States on the Admission
of Character Evidence in Certain Sexual Misconduct Cases.
_
2002 Amendment:_ Federal Rule of Evidence 415, which created a similar
character evidence rule for civil cases, became applicable to the Military
Rules of Evidence on January 6, 1996, pursuant to Rule 1102. Federal Rule
415, however, is no longer applicable to the Military Rules of Evidence,
as stated in Section 1 of Executive Order, 2002 Amendments to the Manual
for Court-Martial, United States, (2000). Rule 415 was deleted because it
applies only to federal civil proceedings.
2013 Amendment. The committee recommended changing the time requirement in subsection (b) to align with the time requirements in Mil. R. Evid. 412 and the Federal Rules of Evidence. This change is also in conformity with military practice in which the military judge may accept pleas shortly after referral and sufficiently in advance of trial. Additionally, the committee recommended revising subsection (d) to align with the Federal Rules of Evidence.
The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Section V contains all of the privileges applicable to military
criminal law except for those privileges which are found within Rules 301,
Privilege Concerning Compulsory Self-Incrimination; Rule 302, Privilege
Concerning Mental Examination of an Accused; and Rule 303, Degrading Questions.
Privilege rules, unlike other Military Rules of Evidence, apply in "investigative
hearings pursuant to Article 32; proceedings for vacation of suspension of
sentence under Article 72; proceedings for search authorization; proceedings
involving pretrial restraint; and in other proceedings authorized under the
Uniform Code of Military Justice of this Manual and not listed in rule 1101(a)." _
See_ Rule 1101(c); see also Rule 1101(b).
In
contrast to the general acceptance of the proposed Federal Rules of Evidence
by Congress, Congress did not accept the proposed privilege rules because
a consensus as to the desirability of a number of specific privileges could
not be achieved. See generally, S. Saltzburg & K. Redden,
FEDERAL RULES OF EVIDENCE MANUAL 200-201 (2d ed. 1977). In an effort
to expedite the Federal Rules generally, Congress adopted a general rule,
Rule 501, which basically provides for the continuation of common law in
the privilege area. The Committee deemed the approach taken by Congress in
the Federal Rules impracticable within the armed forces. Unlike the Article
III court system, which is conducted almost entirely by attorneys functioning
in conjunction with permanent courts in fixed locations, the military criminal
legal system is characterized by its dependence upon large numbers of laymen,
temporary courts, and inherent geographical and personnel instability due
to the worldwide deployment of military personnel. Consequently, military
law requires far more stability than civilian law. This is particularly true
because of the significant number of non-lawyers involved in the military
criminal legal system. Commanders, convening authorities, non-lawyer investigating
officers, summary court-martial officers, or law enforcement personnel need
specific guidance as to what material is privileged and what is not.
Section
V combines the flexible approach taken by Congress with respect to privileges
with that provided in the 1969 Manual. Rules 502-509 set forth specific
rules of privilege to provide the certainty and stability necessary for military
justice. Rule 501, on the other hand, adopts those privileges recognized
in common law pursuant to Federal Rules of Evidence 501 with some limitations.
Specific privileges are generally taken from those proposed Federal Rules
of Evidence which although not adopted by Congress were non-controversial,
or from the 1969 Manual.
Rule 501 is the basic rule of privilege.
In addition to recognizing privileges required by or provided for in the
Constitution, an applicable Act of Congress, the Military Rules of Evidence,
and the Manual for Courts-Martial, Rule 501(a) also recognizes privileges
"generally recognized in the trial of criminal cases in the United
States district courts pursuant to Rule 501 of the Federal Rules of Evidence
insofar as the application of such principles in trials by court-martial
is practicable and not contrary to or inconsistent with the Uniform Code
of Military Justice, these rules, or this Manual." The latter language
is taken from 1969 Manual Para. 137. As a result of Rule 501(a)(4), the common
law of privileges as recognized in the Article III courts will be applicable
to the armed forces except as otherwise provided by the limitation indicated
above. Rule 501(d) prevents the application of a doctor-patient privilege.
Such a privilege was considered to be totally incompatible with the clear
interest of the armed forces in ensuring the health and fitness for duty
of personnel. See 1969 Manual Para. 151 c
It
should be noted that the law of the forum determines the application of privilege.
Consequently, even if a servicemember should consult with a doctor in a
jurisdiction with a doctor-patient privilege for example, such a privilege
is inapplicable should the doctor be called as a witness before the court-martial.
Subdivision
a privilege. The subdivision is derived from Federal Rule of Evidence 501
as originally proposed by the Supreme Court, and the four specific actions
listed are also found in the Uniform Rules of Evidence. The list is intentionally
non-exclusive as a privilege might be claimed in a fashion distinct from
those listed.
Subdivision (c) is derived from Federal Rule of
Evidence 501 and makes it clear that an appropriate representative of a political
jurisdiction or other organizational entity may claim an applicable privilege.
The definition is intentionally non-exhaustive.
_1999
Amendment:_ The privileges expressed in Rule 513 and Rule 302 and
the conforming Manual change in R.C.M. 706, are not physician-patient privileges
and are not affected by Rule 501(d).
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 502(a) continues the substance of the attorney-client privilege
found in Para. 151 b(2) of the 1969 Manual. The Rule does,
however, provide additional detail. Subdivision (a) is taken verbatim from
subdivision (a) of Federal Rule of Evidence 503 as proposed by the Supreme
Court. The privilege is only applicable when there are "confidential
communications made for the purpose of facilitating the rendition of professional
legal services to the client." A mere discussion with an attorney does
not invoke the privilege when the discussion is not made for the purpose
of obtaining professional legal services.
Rule 502(b)(1) defines a "client" as an individual or
entity who receives professional legal services from a lawyer or consults
a lawyer with a view to obtaining such services. The definition is taken
from proposed Federal Rule 503(a)(1) as Para. 151_b_(2) of
the 1969 Manual lacked any general definition of a client.
Rule 502(b)(2) defines a "lawyer." The first portion
of the paragraph is taken from proposed Federal Rule of Evidence 503(a)(2)
and explicitly includes any person "reasonably believed by the client
to be authorized" to practice law. The second clause is taken from
1969 Manual Para. 151 b(2) and recognizes that a "lawyer"
includes "a member of the armed forces detailed, assigned, or otherwise
provided to represent a person in a court-martial case or in any military
investigation or proceeding" regardless of whether that person is in
fact a lawyer. See Article 27. Thus an accused is fully
protected by the privilege even if defense counsel is not an attorney.
The
second sentence of the subdivision recognizes the fact, particularly true
during times of mobilization, that attorneys may serve in the armed forces
in a nonlegal capacity. In such a case, the individual is not treated as
an attorney under the Rule unless the individual fits within one of the three
specific categories recognized by the subdivision. Subdivision (b)(2)(B)
recognizes that a servicemember who knows that an individual is a lawyer
in civilian life may not know that the lawyer is not functioning as such
in the armed forces and may seek professional legal assistance. In such a
case the privilege will be applicable so long as the individual was "reasonably
believed by the client to be authorized to render professional legal services
to members of the armed forces."
Rule 502(b)(3) is taken from proposed Federal Rule of Evidence
503(a)(3) but has been modified to recognize that personnel are "assigned"
within the armed forces as well as employed. Depending upon the particular
situation, a paraprofessional or secretary may be a "representative
of a lawyer." See Para. 151 b(2)
of the 1969 Manual.
Rule 502(b)(4) defines a "confidential" communication
in terms of the intention of the party making the communication. The Rule
is similar to the substance of 1969 Manual Para. 151 b(2)
which omitted certain communications from privileged status. The new Rule
is somewhat broader than the 1969 Manual's provision in that it protects
information which is obtained by a third party through accident or design
when the person claiming the privilege was not aware that a third party
had access to the communication. Compare Rule Para. 151 a of
the 1969 Manual. The broader rule has been adopted for the reasons set forth
in the Advisory Committee's notes on proposed Federal Rule 504(a)(4). The
provision permitting disclosure to persons in furtherance of legal services
or reasonably necessary for the transmission of the communication is similar
to the provision in the 1969 Manual for communications through agents.
Although
Para. 151 c of the 1969 Manual precluded a claim of the
privilege when there is transmission through wire or radio communications,
the new Rules protect statements made via telephone, or, "if use of
such means of communication is necessary and in furtherance of the communication,"
by other "electronic means of communication." Rule 511(b).
Rule 502(c) is taken from proposed Federal Rule 503(b) and expresses
who may claim the lawyer-client privilege. The Rule is similar to but slightly
broader than Para. 151 b(2) of the 1969 Manual. The last
sentence of the subdivision states that "the authority of the lawyer
to claim the privilege is presumed in the absence of evidence to the contrary."
The
lawyer may claim the privilege on behalf of the client unless authority to
do so has been withheld from the lawyer or evidence otherwise exists to show
that the lawyer lacks the authority to claim the privilege.
Rule 502(d) sets forth the circumstances in which the lawyer-client
privilege will not apply notwithstanding the general application of the
privilege.
Subdivision (d)(1) excludes statements contemplating
the future commission of crime or fraud and combines the substance of 1969
Manual Para. 151 b(2) with proposed Federal Rule of Evidence
503(d). Under the exception a lawyer may disclose information given by a
client when it was part of a "communication (which) clearly contemplated
the future commission of a crime of fraud," and a lawyer may also disclose
information when it can be objectively said that the lawyer's services "were
sought or obtained to commit or plan to commit what the client knew or reasonably
should have known to be a crime or fraud." The latter portion of the
exception is likely to be applicable only after the commission of the offense
while the former is applicable when the communication is made.
Subdivisions
(d)(2) through (d)(5) provide exceptions with respect to claims through the
same deceased client, breach of duty by lawyer of client, documents attested
by lawyers, and communications to an attorney in a matter of common interest
among joint clients. There were no parallel provisions in the 1969 Manual
for these rules which are taken from proposed Federal Rule 503(d). The provisions
are included in the event that the circumstances described therein arise
in the military practice.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 503(a) states the basic rule of privilege for communications
to clergy and is taken from proposed Federal Rule of Evidence 506(b) and
1969 Manual Para. 151_b_(2). Like the 1969 Manual, the Rule
protects communications to a clergyman's assistant in specific recognition
of the nature of the military chaplaincy, and deals only with communications
"made either as a formal act of religion or as a matter of conscience."
Rule 503(b)(1) is taken from proposed Federal Rule of Evidence
506(a)(1) but has been modified to include specific reference to a chaplain.
The Rule does not define "a religious organization" and leaves
resolution of that question to precedent and the circumstances of the case.
"Clergyman" includes individuals of either sex.
Rule 503(b)(2) is taken generally from proposed Federal Rule of
Evidence 506(a)(2) but has been expanded to include communications to a
clergyman's assistant and to explicitly protect disclosure of a privileged
communication when "disclosure is in furtherance of the purpose of
the communication or to those reasonably necessary for the transmission of
the communication." The Rule is thus consistent with the definition
of "confidential" used in the lawyer-client privilege, Rule 502(b)(4),
and recognizes that military life often requires transmission of communications
through third parties. The proposed Federal Rule's limitation of the privilege
to communications made "privately" was deleted in favor of the
language used in the actual Military Rule for the reasons indicated. The
Rule is somewhat more protective than the 1969 Manual because of its application
to statements which although intended to be confidential are overheard by
others. See Rule 502(b)(4) and 510(a) and the Analysis thereto.
2007 Amendment: The previous subsection (2) of Mil. R. Evid. 503(b) was renumbered subsection (3) and the new subsection (2) was inserted to define the term "clergyman's assistant."
Rule 503(c) is derived from proposed Federal Rule of Evidence 506(c)
and includes the substance of 1969 Manual Para. 151 b(2)
which provided that the privilege may be claimed by the "penitent."
The Rule supplies additional guidance as to who may actually claim the privilege
and is consistent with the other Military Rules of Evidence relating to
privileges. See Rule 502(c); 504(b)(3); 505(c); 506(c).
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 504(a) is taken generally from _Trammel v. United States
_, 445 U.S. 40 (1980) and significantly changes military law in this
area. Under prior law, see 1969 Manual Para. 148 _
e_, each spouse had a privilege to prevent the use of the other spouse
as an adverse witness. Under the new rule, the_ witness'_ spouse
is the holder of the privilege and may choose to testify or not to testify
as the witness' spouse sees fit. But see Rule 504(c) (exceptions
to the privilege). Implicit in the rule is the presumption that when a spouse
chooses to testify against the other spouse the marriage no longer needs
the protection of the privilege. Rule 504(a) must be distinguished from Rule
504(b), Confidential communication made during marriage, which
deals with communications rather than the ability to testify generally at
trial.
Although the witness' spouse ordinarily has a privilege
to refuse to testify against the accused spouse, under certain circumstances
no privilege may exists, and the spouse may be compelled to testify. _
See_ Rule 504(c).
Rule 504(b) deals with communications made during a marriage and
is distinct from a spouse's privilege to refuse to testify pursuant to Rule
504(a). See 1969 Manual Para. 151_ b_(2).
Rule 504(b)(1) sets forth the general rule of privilege for confidential
spousal communications and provides that a spouse may prevent disclosure
of any confidential spousal communication made during marriage even though
the parties are no longer married at the time that disclosure is desired.
The accused may always require that the confidential spousal communication
be disclosed. Rule 504(b)(3).
No privilege exists under subdivision
Rule 504(b)(2) defines "confidential" in a fashion
similar to the definition utilized in Rules 502(b)(4) and 503(b)(2). The word
"privately" has been added to emphasize that the presence of
third parties is not consistent with the spousal privilege, and the reference
to third parties found in Rules 502 and 503 has been omitted for the same
reason. Rule 504(b)(2) extends the definition of "confidential"
to statements disclosed to third parties who are "reasonably necessary
for transmission of the communication." This recognizes that circumstances
may arise, especially in military life, where spouses may be separated by
great distances or by operational activities, in which transmission of a
communication via third parties may be reasonably necessary.
Rule 504(b)(3) is consistent with 1969 Manual Para. 151 _
b_(2) and gives the privilege to the spouse who made the communication.
The accused may, however, disclose the communication even though the communication
was made to the accused.
Rule 504(c)(1) provides exceptions to the spousal incapacity rule
of Rule 504(a). The rule is taken from 1969 Manual Para. 148 e
and declares that a spouse may not refuse to testify against the other spouse
when the marriage has been terminated by divorce or annulment. Annulment
has been added to the present military rule as being consistent with its
purpose. Separation of spouses via legal separation or otherwise does not
affect the privilege of a spouse to refuse to testify against the other spouse.
For other circumstances in which a spouse may be compelled to testify against
the other spouse,_ see_ Rule 504(c)(2).
Confidential
communications are not affected by the termination of a marriage.
Rule 504(c)(2) prohibits application of the spousal privilege,
whether in the form of spousal incapacity or in the form of a confidential
communication, when the circumstances specified in paragraph (2) are applicable.
Subparagraphs (A) and (C) deal with anti-marital acts, _ e.g.,_ acts
which are against the spouse and thus the marriage. The Rule expressly provides
that when such an act is involved a spouse may not refuse to testify. This
provision is taken from proposed Federal Rule 505(c)(1) and reflects in part
the Supreme Court's decision in Wyatt v. United States,
362 U.S. 525 (1960). See also Trammel v. United States,
445 U.S. 40, 46 n.7 (1980). The Rule thus recognizes society's overriding
interest in prosecution of anti-marital offenses and the probability that
a spouse may exercise sufficient control, psychological or otherwise, to
be able to prevent the other spouse from testifying voluntarily. The Rule
is similar to 1969 Manual Para. 148 e but has deleted the
Manual's limitation of the exceptions to the privilege to matters occurring
after marriage or otherwise unknown to the spouse as being inconsistent with
the intent of the exceptions.
Rule 504(c)(2)(B) is derived from
Para. 148 e and 151 b(2) of the 1969 Manual.
The provision prevents application of the privileges as to privileged communications
if the marriage was a sham at the time of the communication, and prohibits
application of the spousal incapacity privilege if the marriage was begun
as a sham and is a sham at the time the testimony of the witness is to be
offered. Consequently, the Rule recognizes for purposes of subdivision (a)
that a marriage that began as a sham may have ripened into a valid marriage
at a later time. The intent of the provision is to prevent individuals from
marrying witnesses in order to effectively silence them.
2012 Amendment: Subdivision (c)(2)(D) was added by Executive Order 13593 to create an exception to the privilege when both parties have been substantial participants in illegal activity.
2007 Amendment: (d) Definition. Rule 504(d) modifies the rule and is intended to afford additional protection to children. Previously, the term "a child of either," referenced in Rule 504(c)(2)(A), did not include a "de facto" child or a child who is under the physical custody of one of the spouses but lacks a formal legal parent-child relationship with at least one of the spouses. See U.S. v. McCollum, 58 M.J. 323 (C.A.A.F. 2003). Prior to this amendment, an accused could not invoke the spousal privilege to prevent disclosure of communications regarding crimes committed against a child with whom he or his spouse had a formal, legal parent-child relationship; however, the accused could invoke the privilege to prevent disclosure of communications where there was not a formal, legal parent-child relationship. This distinction between legal and "de facto" children resulted in unwarranted discrimination among child victims and ran counter to the public policy of protecting children. Rule 504(d) recognizes the public policy of protecting children by addressing disparate treatment among child victims entrusted to another. The "marital communications privilege should not prevent 'a properly outraged spouse with knowledge from testifying against a perpetrator' of child abuse within the home regardless of whether the child is part of that family." U.S. v. McCollum, 58 M.J. 323, 342 n.6 (C.A.A.F. 2003) (citing U.S. v. Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997)).
2011 Amendment. Subsection (c)(2)(D) was added pursuant to Executive Order 13593 of December 13, 2011.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 505 is based upon H.R. 4745, 96th Cong., 1st Sess. (1979),
which was proposed by the Executive Branch as a response to what is known
as the "graymail" problem in which the defendant in a criminal
case seeks disclosure of sensitive national security information, the release
of which may force the government to discontinue the prosecution. The Rule
is also based upon the Supreme Court's discussion of executive privilege
in United States v. Reynolds, 345 U.S. 1 (1953), and _
United States v. Nixon_, 418 U.S. 683 (1974). The rule attempts to
balance the interests of an accused who desires classified information for
his or her defense and the interests of the government in protecting that
information.
Rule 505(a) is derived from United States v. Reynolds, _
supra_ and 1969 Manual Para. 151. Classified information is only
privileged when its "disclosure would be detrimental to the national
security."
1993 Amendment: The second
sentence was added to clarify that this rule, like other rules of privilege,
applies at all stages of all actions and is not relaxed during the sentencing
hearing under Mil. R. Evid. 1101(c).
Rule 505(b)(1) is derived from section 2 of H.R. 4745. The definition
of "classified information" is a limited one and includes only
that information protected "pursuant to an executive order, statute,
or regulation," and that material which constitutes restricted data
pursuant to 42 U.S.C. § 2014(y) (1976).
Rule 505(b)(2) is derived from section 2 of H.R. 4745.
Rule 505(c) is derived from Para. 151 of the 1969 Manual and is
consistent with similar provisions in the other privilege rules. _
See_ Rule 501(c). The privilege may be claimed only "by the
head of the executive or military department or government agency concerned"
and then only upon "a finding that the information is properly classified
and that disclosure would be detrimental to the national security."
Although the authority of a witness or trial counsel to claim the privilege
is presumed in the absence of evidence to the contrary, neither a witness
nor a trial counsel may claim the privilege without prior direction to do
so by the appropriate department or agency head. Consequently, expedited
coordination with senior headquarters is advised in any situation in which
Rule 505 appears to be applicable.
Rule 505(d) is taken from section 4(b)(1) of H.R. 4745. The provision
has been modified to reflect the fact that pretrial discovery in the armed
forces, prior to referral, is officially conducted through the convening
authority. The convening authority should disclose the maximum amount of
requested information as appears reasonable under the circumstances.
Rule 505(e) is derived from section 3 of H.R. 4745.
Rule 505(f) provides the basic procedure under which the government
should respond to a determination by the military judge that classified
information "apparently contains evidence that is relevant and material
to an element of the offense or a legally cognizable defense and is otherwise
admissible in evidence." See generally the Analysis
to Rule 507(d).
It should be noted that the government may submit
information to the military judge for in camera inspection
pursuant to subdivision (i). If the defense requests classified information
that it alleges is "relevant and material" and the government
refuses to disclose the information to the military judge for inspection,
the military judge may presume that the information is in fact "relevant
and material."
Paragraphs (1) and (2) of Rule 505(g) are derived from section 4
of H.R. 4745. Paragraph (3) is taken from section 10 of H.R. 4745 but has
been modified in view of the different application of the Jencks Act, 18
U.S.C. § 3500 (1976) in the armed forces. Paragraph (4) is taken from
sections 4(b)(2) and 10 of H.R. 4745. The reference in H.R. 4745 to a recess
has been deleted as being unnecessary in view of the military judge's inherent
authority to call a recess.
_ 1993 Amendment:_ Subsection
(g)(1)(D) was amended to make clear that the military judge's authority to
require security clearances extends to persons involved in the conduct of
the trial as well as pretrial preparation for it. The amendment requires
persons needing security clearances to submit to investigations necessary
to obtain the clearance.
Rule 505(h) is derived from section 5 of H.R. 4745. The intent of
the provision is to prevent disclosure of classified information by the defense
until the government has had an opportunity to determine what position to
take concerning the possible disclosure of that information. Pursuant to
Rule 505(h)(5), failure to comply with subdivision (h) may result in a prohibition
on the use of the information involved.
_ 1993 Amendment:
_ Subsection (h)(3) was amended to require specificity in detailing
the items of classified information expected to be introduced. The amendment
is based on United States v. Collins, 720 F.2d. 1195 (11th
Cir. 1983).
Rule 505(i) is derived generally from section 5 of H.R. 4745. The
"in camera" procedure utilized in subdivision
may be excluded from the in camera proceeding. However,
nothing within the Rule requires that the defense be provided with a copy
of the classified material in question when the government submits such information
to the military judge pursuant to Rule 505(i)(3) in an effort to obtain an _
in camera_ proceeding under this Rule. If such information has not
been disclosed previously, the government may describe the information by
generic category, rather than by identifying the information. Such description
is subject to approval by the military judge, and if not sufficiently specific
to enable the defense to proceed during the in camera session,
the military judge may order the government to release the information for
use during the proceeding or face the sanctions under subdivision (i)(4)(E).
_
1993 Amendment:_ Subsection (i)(3) was amended to clarify that
the classified material and the government's affidavit are submitted only
to the military judge. The word "only" was placed at the end
of the sentence to make it clear that it refers to "military judge"
rather than to "examination." The military judge is to examine
the affidavit and the classified information without disclosing it before
determining to hold an in camera proceeding as defined in
subsection (i)(1).
The second sentence of subsection (i)(4)(B)
was added to provide a standard for admission of classified information in
sentencing proceedings.
Rule 505(j) is derived from section 8 of H.R. 4745 and _
United States v. Grunden_, 2 M.J. 116 (C.M.A. 1977).
_
1993 Amendment:_ Subsection (j)(5) was amended to provide that the
military judge's authority to exclude the public extends to the presentation
of any evidence that discloses classified information, and not merely to
the testimony of witnesses. _See generally, United States v. Hershey
_, 20 M.J. 433 (C.M.A. 1985), cert. denied, 474
U.S. 1062 (1986) (specifies factors to be considered in the trial judge's
determination to close the proceedings).
information disclosed to courts-martial.
Rule 505(k) is derived from section 9 of H.R. 4745.
2013 Amendment. The committee recommended significantly restructuring this rule to bring greater clarity and regularity to military practice. The changes focus primarily on expanding the military judge's explicit authority to conduct ex parte pretrial conferences in connection with classified information and detailing when the military judge is required to do so, limiting the disclosure of classified information per order of the military judge, specifically outlining the process by which the accused gains access to and may request disclosure of classified information, and the procedures for using classified material at trial. The changes were intended to ensure that classified information is not needlessly disclosed while at the same time ensuring that the accused's right to a fair trial is maintained. Some of the language was adopted from the Military Commissions Rules of Evidence and the Classified Information Procedures Act.
Rule 506(a) states the general rule of privilege for nonclassified
government information. The Rule recognizes that in certain extraordinary
cases the government should be able to prohibit release of government information
which is detrimental to the public interest. The Rule is modeled on Rule
505 but is more limited in its scope in view of the greater limitations applicable
to nonclassified information. Compare United States v. Nixon,
418 U.S. 683 (1974) with United States v. Reynolds, 345
U.S. 1 (1953). Rule 506 addresses those similar matters found in 1969 Manual
Para. 151 b(1) and 151 b(3). Under Rule
506(a) information is privileged only if its disclosure would be "detrimental
to the public interest." It is important to note that pursuant to Rule
506(c) the privilege may be claimed only "by the head of the executive
or military department or government agency concerned" unless investigations
of the Inspectors General are concerned.
Under Rule 506(a) there
is no privilege if disclosure of the information concerned is required by
an Act of Congress such as the Freedom of Information Act, 5 U.S.C. §
552 (1976). Disclosure of information will thus be broader under the Rule
than under the 1969 Manual. See _United States v.
Nixon_, supra.
Rule 506(b) defines "Government information" in a nonexclusive
fashion, and expressly states that classified information and information
relating to the identity of informants are solely within the scope of other
Rules.
Rule 506(c) distinguishes between government information in general
and investigations of the Inspectors General. While the privilege for the
latter may be claimed "by the authority ordering the investigation
or any superior authority," the privilege for other government information
may be claimed only "by the head of the executive
or military department or government agency concerned." _See
generally_ the Analysis to Rule 505(c).
_1990
Amendment:_ Subsection (c) was amended by substituting the words
"records and information" for "investigations", which
is a term of art vis-a-vis Inspector General functions. Inspectors General
also conduct "inspections" and "inquiries," and use
of the word "records and information" is intended to cover all
documents and information generated by or related to the activities of Inspectors
General. "Records" includes reports of inspection, inquiry, and
investigation conducted by an Inspector General and extracts, summaries,
exhibits, memoranda, notes, internal correspondence, handwritten working
materials, untranscribed shorthand or stenotype notes of unrecorded testimony,
tape recordings and other supportive records such as automated data extracts.
In conjunction with this change, the language identifying the official entitled
to claim the privilege for Inspector General records was changed to maintain
the previous provision which allowed the superiors of Inspector General officers,
rather than the officers themselves, to claim the privilege.
Rule 506(d) specifies action to be taken prior to referral of charges
in the event of a claim of privilege under the Rule. _See generally
_ Rule 505(d) and its Analysis. Note that disclosures can be withheld
only if action under paragraph (1)-(4) of subdivision (d) cannot be
made "without causing identifiable damage to the public interest"
(emphasis added).
See generally Rule 505(f) and its Analysis. Note
that unlike Rule 505(f), however, Rule 506(e) does not require a finding
that failure to disclose the information in question "would materially
prejudice a substantial right of the accused." Dismissal is required
when the relevant information is not disclosed in a "reasonable period
of time."
1995 Amendment: It is the intent
of the Committee that if classified information arises during a proceeding
under Rule 506, the procedures of Rule 505 will be used.
The
new subsection (e) was formerly subsection (f). The matters in the former
subsection (f) were adopted without change. The former subsection (e) was
amended and redesignated as subsection (f) (see below).
Rule 506(f) is taken from Rule 505(e). It is the intent of the
Committee that if classified information arises during a proceeding under
Rule 506, the procedures of Rule 505 will be used.
_1995
Amendment:_ See generally Rule 505(f) and its accompanying
Analysis. Note that unlike Rule 505(f), however, Rule 506(f) does not require
a finding that failure to disclose the information in question "would
materially prejudice a substantial right of the accused." Dismissal
is not required when the relevant information is not disclosed in a "reasonable
period of time."
Subsection (f) was formerly subsection
(e). The subsection was amended to cover action after a defense motion for
discovery, rather than action after referral of charges. The qualification
that the government claim of privilege pertains to information "that
apparently contains evidence that is relevant and necessary to an element
of the offense or a legally cognizable defense and is otherwise admissible
in evidence in a court-martial proceeding" was deleted as unnecessary.
Action by the convening authority is required if, after referral, the defense
moves for disclosure and the Government claims the information is privileged
from disclosure.
Rule 506(g) is taken from Rule 505(g) but deletes references to
classified information and clearances due to their inapplicability.
Rule 506(h) is derived from Rule 505(h)(4). The remainder of Rule
505(h)(4) and Rule 505(h) generally has been omitted as being unnecessary.
No sanction for violation of the requirement has been included.
_
1995 Amendment:_ Subsection (h) was amended to provide that government
information may not be disclosed by the accused unless authorized by the
military judge.
Rule 506(i) is taken generally from Rule 505(i), but the standard
involved reflects 1969 Manual Para. 151 and the Supreme Court's decision
in United States v. Nixon, supra. In line
with_ Nixon_, the burden is on the party claiming the privilege
to demonstrate why the information involved should not be disclosed. References
to classified material have been deleted as being inapplicable.
_
1995 Amendment:_ Subsection (i) was amended to clarify the procedure
for in camera proceedings. The definition in subsection (i)(1) was amended
to conform to the definition of in camera proceedings in Mil. R. Evid. 505(i)(1).
Subsections (i)(2) and (i)(3) were unchanged. Subsection (i)(4)(B), redesignated
as (i)(4)(C), was amended to include admissible evidence relevant to punishment
of the accused, consistent with Brady v. Maryland, 373 U.S.
83, 87 (1963). Subsection (i)(4)(C) was redesignated as (i)(4)(D), but was
otherwise unchanged. The amended procedures provide for full disclosure
of the government information in question to the accused for purposes of
litigating the admissibility of the information in the protected environment
of the in camera proceeding; i.e., the Article 39(a) session
is closed to the public and neither side may disclose the information outside
the in camera proceeding until the military judge admits the information
as evidence in the trial. Under subsection (i)(4)(E), the military judge
may authorize alternatives to disclosure, consistent with a military judge's
authority concerning classified information under Mil. R. Evid. 505. Subsection
(i)(4)(F) allows the Government to determine whether the information ultimately
will be disclosed to the accused. However, the Government's continued objection
to disclosure may be at the price of letting the accused go free, in that
subsection (i)(4)(F) adopts the sanctions available to the military judge
under Mil. R. Evid. 505(i)(4)(E). See United States v. Reynolds,
345 U.S. 1, 12 (1953).
Rule 506(k) is derived from Rule 505(j) with appropriate modifications
being made to reflect the nonclassified nature of the information involved.
_
1995 Amendment:_ Subsection (j) was added to recognize the Government's
right to appeal certain rulings and orders. _ See_ R.C.M. 908.
The former subsection (j) was redesignated as subsection (k). The subsection
speaks only to government appeals; the defense still may seek extraordinary
relief through interlocutory appeal of the military judge's orders and rulings. _
See generally_, 28 U.S.C. § 1651(a); _Waller v. Swift
_, 30 M.J. 139 (C.M.A. 1990); _Dettinger v. United States
_, 7 M.J. 216 (C.M.A. 1979).
disclosed to courts-martial.
Rule 506(k) is derived from Rule 505(k). Such procedures should
reflect the fact that material privileged under Rule 506 is not classified.
2013 Amendment. The committee recommended significantly revising this rule to bring greater clarity to it and also to align it with changes made to Mil. R. Evid. 505.
Rule 507(a) sets forth the basic rule of privilege for informants
and contains the substance of 1969 Manual Para. 151 b(1).
The new Rule, however, provides greater detail as to the application of the
privilege than did the 1969 manual.
The privilege is that of
the United States or political subdivision thereof and applies only to information
relevant to the identity of an informant. An "informant" is simply
an individual who has supplied "information resulting in an investigation
of a possible violation of law" to a proper person and thus includes
good citizen reports to command or police as well as the traditional "confidential
informants" who may be consistent sources of information.
Rule 507(b) provides for claiming the privilege and distinguishes
between representatives of the United States and representatives of a state
or subdivision thereof. Although an appropriate representative of the United
States may always claim the privilege when applicable, a representative of
a state or subdivision may do so only if the information in question was
supplied to an officer of the state or subdivision. The Rule is taken from
proposed Federal Rule of Evidence 510(b), with appropriate modifications,
and is similar in substances to Para. 151 b(1) of the 1969
Manual which permitted "appropriate governmental authorities"
to claim the privilege.
The Rule does not specify who an "appropriate
representative" is. Normally, the trial counsel is an appropriate
representative of the United States. The Rule leaves the question open, however,
for case by case resolution. Regulations could be promulgated which could
specify who could be an appropriate representative.
Rule 507(c) sets forth the circumstances in which the privilege
is inapplicable.
Rule 507(c)(1) makes it clear that the privilege is inapplicable
if circumstances have nullified its justification for existence. Thus, there
is no reason for the privilege, and the privilege is consequently inapplicable,
if the individual who would have cause to resent the informant has been made
aware of the informant's identity by a holder of the privilege or by the
informant's own action or when the witness testifies for the prosecution
thus allowing that person to ascertain the informant's identity. This is
in accord with the intent of the privilege which is to protect informants
from reprisals. The Rule is taken from Para. 151 b(1) of
the 1969 Manual.
Rule 507(c)(2) is taken from 1969 Manual Para. 151 b (1)
and recognizes that in certain circumstances the accused may have a due process
right under the Fifth Amendment, as well as a similar right under the Uniform
Code of Military Justice, to call the informant as a witness. The subdivision
intentionally does not specify what circumstances would require calling the
informant and leaves resolution of the issue to each individual case.
Rule 507(c)(3) is new. The Rule recognizes that circumstances may
exist in which the Constitution may require disclosure of the identity of
an informant in the context of determining the legality of obtaining evidence
under Rule 311; see, e.g., Franks v. Delaware,
438 U.S. 154, 170 (1978); McCray v. Illinois, 386 U.S. 300
circumstances but do not in fact require such disclosure). In view of the
highly unsettled nature of the issue, the Rule does not specify whether or
when such disclosure is mandated and leaves the determination to the military
judge in light of prevailing case law utilized in the trial of criminal cases
in the Federal district courts.
Rule 507(d) sets forth the procedures to be followed in the event
of a claim of privilege under Rule 507. If the prosecution elects not to
disclose the identity of an informant when the judge has determined that
disclosure is required, that matter shall be reported to the convening authority.
Such a report is required so that the convening authority may determine what
action, if any, should be taken. Such actions could include disclosure of
the informant's identity, withdrawal of charges, or some appropriate appellate
action.
2013 Amendment. The committee recommended adding subsection (b) to define terms that are used throughout the rule and adding subsection (e)(1) to permit the military judge to hold an in camera review upon request by the prosecution. The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 508 is taken from proposed Federal Rule of Evidence 507 and
expresses the substance of 18 U.S.C. § 596, which is applicable
to the armed forces. The privilege is considered essential for the armed
forces because of the unique nature of military life.
Rule 509 is taken from 1969 Manual Para. 151 but has been modified
to ensure conformity with Rule 606(b) which deals specifically with disclosure
of deliberations in certain cases.
2013 Amendment. The committee recommended adding the language "courts-martial, military judges" to this rule in light of CAAF's holding in United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009). In that case, CAAF held that this rule as it was previously written created an implied privilege that protected the deliberative process of a military judge from disclosure and that testimony that revealed the deliberative thought process of the military judge is inadmissible. Matthews, 68 M.J. at 38-43. The changes simply express what the court found had previously been implied.
Rule 510 is derived from proposed Federal Rule of Evidence 511 and
is similar in substance to 1969 Manual Para. 151 a which
notes that privileges may be waived. Rule 510(a) simply provides that "disclosure
of any significant part of the matter or communication under such circumstances
that it would be inappropriate to claim the privilege" will defeat
and waive the privilege. Disclosure of privileged matter may be, however,
itself privileged; see Rules 502(b)(4); 503(b)(2); 504(b)(2).
Information disclosed in the form of an otherwise privileged telephone call
(e.g., information overheard by an operator) is privileged,
Rule 511(b), and information disclosed via transmission using other forms
of communication may be privileged; Rule 511(b). Disclosure under certain
circumstances may not be "inappropriate" and the information
will retain its privileged character. Thus, disclosure of an informant's
identity by one law enforcement agency to another may well be appropriate
and not render Rule 507 inapplicable.
Rule 510(b) is taken from
Para. 151 b(1) of the 1969 Manual and makes it clear that
testimony pursuant to a grant of immunity does not waive the privilege. Similarly,
an accused who testifies in his or her own behalf does not waive the privilege
unless the accused testifies voluntarily to the privileged matter of communication.
to claim privilege
Rule 511(a) is similar to proposed Federal Rule of Evidence 512.
Placed in the context of the definition of "confidential" utilized
in the privilege rules, see, Rule 502(b)(4), the Rule is
substantially different from prior military law inasmuch as prior law permitted
utilization of privileged information which had been gained by a third party
through accident or design. See Para. 151 b (1),
MCM, 1969 (Rev.). Such disclosures are generally safeguarded against via
the definition "confidential" used in the new Rules. Generally,
the Rules are more protective of privileged information than was the 1969
Manual.
Rule 511(b) is new and deals with electronic transmission
of information. It recognizes that the nature of the armed forces today often
requires such information transmission. Like 1969 Manual Para. 151 _
b_(1), the new Rule does not make a nonprivileged communication
privileged; rather, it simply safeguards already privileged information under
certain circumstances.
The first portion of subdivision (b) expressly
provides that otherwise privileged information transmitted by telephone remains
privileged. This is in recognition of the role played by the telephone in
modern life and particularly in the armed forces where geographical separations
are common. The Committee was of the opinion that legal business cannot be
transacted in the 20th century without customary use of the telephone. Consequently,
privileged communications transmitted by telephone are protected even though
those telephone conversations are known to be monitored for whatever purpose.
Unlike
telephonic communications, Rule 511(b) protects other forms of electronic
communication only when such means "is necessary and in furtherance
of the communication." It is irrelevant under the Rule as to whether
the communication in question was in fact necessary. The only relevant question
is whether, once the individual decided to communicate, the _ means
_ of communication was necessary and in furtherance of the communication.
Transmission of information by radio is a means of communication that must
be tested under this standard.
2013 Amendment. Titles were added to the subsections of this rule for clarity and ease of use.
Rule 512(a) is derived from proposed Federal Rule 513. The Rule
is new to military law but is generally in accord with the Analysis of Contents
of the 1969 Manual; United States Department of the Army, Pamphlet No. 27-2,
Analysis of Contents, Manual for Courts-Martial 1969, _Revised Edition,
_ 27-33, 27-38 (1970).
Rule 512(a)(1) prohibits
any inference or comment upon the exercise of a privilege by the accused
and is taken generally from proposed Federal Rule of Evidence 513(a).
Rule
512(a)(2) creates a qualified prohibition with respect to any inference or
comment upon the exercise of a privilege by a person not the accused. The
Rule recognizes that in certain circumstances the interests of justice may
require such an inference and comment. Such a situation could result, for
example, when the government's exercise of a privilege has been sustained,
and an inference adverse to the government is necessary to preserve the fairness
of the proceeding.
Rule 512(b) is intended to implement subdivision (a). Where possible,
claims of privilege should be raised at an Article 39(a) session or, if
practicable, at sidebar.
Rule 512(c) requires that relevant instructions be given "upon
request." Cf. Rule 105. The military judge does not
have a duty to instruct sua sponte.
1999 Amendment: Military Rule of Evidence 513
establishes a psychotherapist-patient privilege for investigations or proceedings
authorized under the Uniform Code of Military Justice. Rule 513 clarifies
military law in light of the Supreme Court decision in _Jaffee v.
Redmond_, 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed.2d 337 (1996). _
Jaffee_ interpreted Federal Rule of Evidence 501 to create a federal
psychotherapist-patient privilege in civil proceedings and refers federal
courts to state laws to determine the extent of privileges. In deciding to
adopt this privilege for courts-martial, the committee balanced the policy
of following federal law and rules, when practicable and not inconsistent
with the UCMJ or MCM, with the needs of commanders for knowledge of certain
types of information affecting the military. The exceptions to the rule have
been developed to address the specialized society of the military and separate
concerns that must be met to ensure military readiness and national security.
See Parker v. Levy, 417 U.S. 733, 743 (1974); _U.S.
ex rel. Toth v. Quarles_, 350 U.S. 11, 17 (1955); _Dept. of
the Navy v. Egan_, 484 U.S. 518, 530 (1988). There is no intent to
apply Rule 513 in any proceeding other than those authorized under the UCMJ.
Rule 513 was based in part on proposed Fed. R. Evid. 504 (not adopted) and
state rules of evidence. Rule 513 is not a physician-patient privilege. It
is a separate rule based on the social benefit of confidential counseling
recognized by Jaffee, and similar to the clergy-penitent privilege. In keeping
with American military law since its inception, there is still no physician-patient
privilege for members of the Armed Forces. See the analyses
for Rule 302 and Rule 501.
The words "under the UCMJ" in this rule mean Rule 513
applies only to UCMJ proceedings, and do not limit the availability of such
information internally to the services, for appropriate purposes.
These exceptions are intended to emphasize that military commanders
are to have access to all information that is necessary for the safety and
security of military personnel, operations, installations, and equipment.
Therefore, psychotherapists are to provide such information despite a claim
of privilege.
2012 Amendment: Executive Order 13593 removed communications about spouse abuse as an exception to the privilege by deleting the words "spouse abuse" and "the person of the other spouse or" from Rule 513(d)(2), thus expanding the overall scope of the privilege. In removing the spouse abuse exception to Rule 513, the privilege is now consistent with Rule 514 in that spouse victim communications to a provider who qualifies as both a psychotherapist for purposes of Rule 513 and victim advocate for purposes of Mil. R. Evid. 514 are covered by the privilege.
2011 Amendment. In Executive Order 13593 of December 13, 2011, the President removed communications about spouse abuse as an exception to the spousal privilege by deleting the words "spouse abuse" and "the person of the other spouse or" from Mil. R. Evid. 513(d)(2), thus expanding the overall scope of the privilege. The privilege is now consistent with Mil. R. Evid. 514 in that spouse victim communications to a provider who qualifies as both a psychotherapist for purposes of Mil. R. Evid. 513 and as a victim advocate for purposes of Mil. R. Evid. 514 are covered.
2013 Amendment. In subsection (e)(3), the committee recommended changing the language to further expand the military judge's authority and discretion to conduct in camera reviews. The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
2015 Amendment: Rule 513(e)(2) was revised in accordance with L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), and Sections 534(c) and 537 of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014.
2012 Amendment: Like the psychotherapist-patient privilege created by Rule 513, Rule 514 establishes a victim advocate-victim privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Implemented as another approach to improving the military's overall effectiveness in addressing the crime of sexual assault, facilitating candor between victims and victim advocates, and mitigating the impact of the court-martial process on victims, the rule specifically emerged in response to concerns raised by members of Congress, community groups, and The Defense Task Force on Sexual Assault in the Military Services (DTFSAMS). In its 2009 report, DTFSAMS noted the following: 35 states had a privilege for communications between victim advocates and victims of sexual assault; victims did not believe they could communicate confidentially with medical and psychological support services provided by DoD; victims perceived interference with the victim-victim advocate relationship and continuing victim advocate services when the victim advocate was identified as a potential witness in a court-martial; and service members reported being "re-victimized" when their prior statements to victim advocates were used to cross-examine them in court-martial proceedings. DTFSAMS recommended that Congress "enact a comprehensive military justice privilege for communications between a Victim Advocate and a victim of sexual assault." Both the DoD Joint Service Committee on Military Justice and Congress began considering a privilege. The Committee modeled proposed Rule 514 after Rule 513, including its various exceptions, in an effort to balance the privacy of the victim's communications with a victim advocate against the accused's legitimate needs. Differing proposals for a victim advocate privilege were suggested as part of the National Defense Authorization Act for 2011 (NDAA), but were not enacted. A victim advocate privilege passed the House of Representatives as part of the NDAA for 2012, while the Senate version required the President to issue a Military Rule of Evidence providing a privilege. Congress removed both provisions because Rule 514 was pending the President's signature and Congress was satisfied that once implemented, this Rule accomplished the objective of ensuring privileged communications for sexual assault victims.
The words "under the UCMJ" in Rule 514 mean that the privilege only applies to UCMJ proceedings. It does not apply in situations in which the offender cannot be prosecuted under the UCMJ. Furthermore, this Rule only applies to communications between a victim advocate and the victim of a sexual or violent offense.
The Committee intended the definition of "victim advocate" from Rule 514 to include, but not be limited to, personnel performing victim advocate duties within the DoD Sexual Assault Prevention and Response Office (such as a Sexual Assault Response Coordinator), and the DoD Family Advocacy Program (such as a domestic abuse victim advocate). A victim liaison appointed pursuant to the Victim and Witness Assistance Program is not a "victim advocate" for purposes of this Rule, nor are personnel working within an Equal Opportunity or Inspector General office. For purposes of this Rule, the Committee intended "violent offense" to mean an actual or attempted murder, manslaughter, rape, sexual assault, aggravated assault, robbery, assault consummated by a battery and similar offenses. A simple assault may be a violent offense where the violence has been physically attempted or menaced. A mere threatening in words is not a violent offense. The Committee recognizes that this Rule will be applicable in situations where there is a factual dispute as to whether a sexual or violent offense occurred and whether a person actually suffered direct physical or emotional harm of such an offense. The fact that such findings have not been judicially established shall not prevent application of this Rule to alleged victims reasonably intended to be covered by this Rule.
The exceptions to Rule 514 are similar to the exceptions found in Rule 513, and are intended to be applied in the same manner. Rule 514 does not include comparable exceptions found within Rule 513(d)(2) and 513(d)(7). In drafting the "constitutionally required" exception, the Committee intended that communication covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not disclosed. In practice, this relatively high standard of release is not intended to invite a fishing expedition for possible statements made by the victim, nor is it intended to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged communications to only those statements which are relevant and whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Rule 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011); United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). See also Rule 611.
2013 Amendment. Like the psychotherapist-patient privilege created by Mil. R. Evid. 513, Mil. R. Evid. 514 establishes a victim advocate-victim privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Implemented as another approach to improving the military's overall effectiveness in addressing the crime of sexual assault, facilitating candor between victims and victim advocates, and mitigating the impact of the court-martial process on victims, the rule was developed in response to concerns raised by members of Congress, community groups and the Defense Task Force on Sexual Assault in the Military Services (DTFSAMS). In its 2009 report, DTFSAMS noted that: 35 states had a privilege for communications between victim advocates and victims of sexual assault; victims did not believe they could communicate confidentially with medical and psychological support services provided by DoD; there was interference with the victim-victim advocate relationship and continuing victim advocate services when the victim advocate was identified as a potential witness in a court-martial; and service members reported being "re-victimized" when their prior statements to victim advocates were used to cross-examine them in court-martial proceedings. Report of the Defense Task Force on Sexual Assault in the Military Services, at 69 (Dec. 2009). DTFSAMS recommended that Congress "enact a comprehensive military justice privilege for communications between a Victim Advocate and a victim of sexual assault." Id. at ES-4. The committee chose to model a proposed Mil. R. Evid. 514 on Mil. R. Evid. 513, including its various exceptions, in an effort to balance the privacy of the victim's communications with a victim advocate against the accused's legitimate needs.
Under subsection (a) of Mil. R. Evid. 514, the words "under the Uniform Code of Military Justice" mean that the privilege only applies to misconduct situations constituting a case that could result in UCMJ proceedings. It does not apply in situations in which the offender is not subject to UCMJ jurisdiction. There is no intent to apply Mil. R. Evid. 514 in any proceeding other than those authorized under the UCMJ. However, service regulations dictate how the privilege is applied to non-UCMJ proceedings. Furthermore, this rule only applies to communications between a victim advocate and the victim of a sexual or violent offense.
Under subsection (b), the committee intended the definition of "victim advocate" to include, but not be limited to, personnel performing victim advocate duties within the DoD Sexual Assault Prevention and Response Office (such as a Sexual Assault Response Coordinator), and the DoD Family Advocacy Program (such as a domestic abuse victim advocate). To determine whether an official's duties encompass victim advocate responsibilities, DoD and military service regulations should be consulted. A victim liaison appointed pursuant to the Victim and Witness Assistance Program is not a "victim advocate" for purposes of this rule, nor are personnel working within an Equal Opportunity or Inspector General office. For purposes of this rule, the committee intended "violent offense" to mean an actual or attempted murder, manslaughter, rape, sexual assault, aggravated assault, robbery, assault consummated by a battery, or similar offense. A simple assault may be a violent offense where the violence has been physically attempted or menaced. A mere threatening in words is not a violent offense. The committee recognizes that this rule will apply in situations where there is a factual dispute as to whether a sexual or violent offense occurred and whether a person actually suffered direct physical or emotional harm from such an offense. The fact that such findings have not been judicially established shall not prevent application of this rule to alleged victims reasonably intended to be covered by this rule.
Under subsection (d), the exceptions to Mil. R. Evid. 514 are similar to the exceptions found in Mil. R. Evid. 513, and are intended to be applied in the same manner. Mil. R. Evid. 514 does not include comparable exceptions found within Mil. R. Evid. 513(d)(2) and 513(d)(7). In drafting the "constitutionally required" exception, the committee intended that communication covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not disclosed . In practice, this relatively high standard of release is not intended to invite a fishing expedition for possible statements made by the victim, nor is it intended to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged communications to only those statements that are relevant and whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Mil. R. Evid. 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States v. Gaddis, 70 M.J. 248, 256-57 (C.A.A.F. 2011); United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011).
2015 Amendment: Rule 514(e)(2) was revised in accordance with L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) ), and Section 534(c) of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 2014. Rule 514 was also revised to protect communications made to the Department of Defense Safe Helpline, which is a crisis support service for victims of sexual assault in the Department of Defense. The Department of Defense Safe Helpline was established in 2011 under a contract with the Rape, Abuse & Incest National Network. Rule 514(e) was amended to adopt a legal threshold that must be satisfied before a military judge may order an in camera review of records or communications falling within the privilege. While not required by Section 537 of the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, the Rule 514 threshold was modeled after the Rule 513 threshold required by that Section.
Rule 601 is taken without change from the first portion of Federal
Rule of Evidence 601. The remainder of the Federal Rule was deleted due to
its sole application to civil cases.
In declaring that subject
to any other Rule, all persons are competent to be witnesses, Rule 601 supersedes
Para. 148 of the 1969 Manual which required, among other factors, that an
individual know the difference between truth and falsehood and understand
the moral importance of telling the truth in order to testify. Under Rule
601 such matters will go only to the weight of the testimony and not to its
competency. The Rule's reference to other rules includes Rules 603 (Oath
or Affirmation), 605 (Competency of Military Judge as Witness), 606 (Competency
of Court Member as Witness), and the rules of privilege.
The
plain meaning of the Rule appears to deprive the trial judge of any discretion
whatsoever to exclude testimony on grounds of competency unless the testimony
is incompetent under those specific rules already cited _supra; see,
_ United States v. Fowler, 605 F.2d 181 (5th Cir.
1979), a conclusion bolstered by the Federal Rules of Evidence Advisory Committee's
Note, S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 270
(2d ed. 1977). Whether this conclusion is accurate, especially in the light
of Rule 403, is unclear. Id. at 269; _see also United
States v. Calahan_, 442 F.Supp. 1213 (D. Minn. 1978).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 602 is taken without significant change from the Federal Rule
and is similar in content to Para. 138 d, MCM, 1969 (Rev.).
Although the 1969 Manual expressly allowed an individual to testify to his
or her own age or date of birth, the Rule is silent of the issue.
Notwithstanding
that silence, however, it appears that it is within the meaning of the Rule
to allow such testimony. Rule 804(b)(4) (Hearsay Exceptions; Declarant Unavailable-Statement
of Personal or Family History) expressly permits a hearsay statement "concerning
the declarant's own birth . . . or other similar fact of personal or family
history, even though declarant had no means of acquiring personal knowledge
of the matter stated." It seems evident that if such a hearsay statement
is admissible, in-court testimony by the declarant should be no less admissible.
It is probable that the expression "personal knowledge" in Rule
804(b)(4) is being used in the sense of "first hand knowledge"
while the expression is being used in Rule 602 in a somewhat broader sense
to include those matters which an individual could be considered to reliably
know about his or her personal history.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 603 is taken from the Federal Rule without change. The oaths
found within Chapter XXII of the Manual satisfy the requirements of Rule
he or she makes an unsworn statement.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 604 is taken from the Federal Rule without change and is consistent
with Para. 141, MCM, 1969 (Rev.). The oath found in Paras. 114 _e
_, MCM, 1969 (Rev.) (now R.C.M. 807(b)(2) (Discussion), MCM, 1984),
satisfies the oath requirements of Rule 604.
2013 Amendment. The committee recommended amending this rule to match the Federal Rules of Evidence. However, the word "qualified" is undefined both in these rules and in the Federal Rules. R.C.M. 502(e)(1) states that the Secretary concerned may prescribe qualifications for interpreters. Practitioners should therefore refer to the Secretary's guidance to determine if an interpreter is qualified under this rule. The committee also recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 605(a) restates the Federal Rule without significant change.
Although Article 26(d) of the Uniform Code of Military Justice states in
relevant part that "no person is eligible to act as a military judge
if he is a witness for the prosecution ..." and is silent on whether
a witness for the defense is eligible to sit, the Committee believes that
the specific reference in the code was not intended to create a right and
was the result only of an attempt to highlight the more grievous case. In
any event, Rule 605, unlike Article 26(d), does not deal with the question
of eligibility to sit as a military judge, but deals solely with the military
judge's competency as a witness. The rule does not affect _voir dire.
_
Rule 605(b) is new and is not found within the Federal
Rules of Evidence. It was added because of the unique nature of the military
judiciary in which military judges often control their own dockets without
clerical assistance. In view of the military's stringent speedy trial roles, _
see,_ United States v. Burton, 21 U.S.C.M.A 112,
44 C.M.R. 166 (1971), it was necessary to preclude expressly any interpretation
of Rule 605 that would prohibit the military judge from placing on the record
details relating to docketing in order to avoid prejudice to a party. Rule
605(b) is consistent with present military law.
2013 Amendment. The committee recommended revising subsection (a) for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 606(a) is taken from the Federal Rule without substantive
change. The Rule alters prior military law only to the extent that a member
of the court could testify as a defense witness under prior precedent. Rule
606(a) deals only with the competency of court members as witnesses and does
not affect other Manual provisions governing the eligibility of the individuals
to sit as members due to their potential status as witnesses.
See, e.g., Paras. 62 f and 63, MCM,
1969 (Rev.). The Rule does not affect voir dire.
Rule 606(b) is taken from the Federal Rule with only one significant
change. The rule, retitled to reflect the sentencing function of members,
recognizes unlawful command influence as a legitimate subject of inquiry
and permits testimony by a member on that subject. The addition is required
by the need to keep proceedings free from any taint of unlawful command influence
and further implements Article 37(a) of the Uniform Code of Military Justice.
Use of superior rank or grade by one member of a court to sway other members
would constitute unlawful command influence for purposes of this Rule under
Para. 74 d(1), MCM, 1969 (Rev.). Rule 606 does not itself
prevent otherwise lawful polling of members of the court, _see generally,
United States v. Hendon_, 6 M.J. 171, 174 (C.M.A. 1979), and does
not prohibit attempted lawful clarification of an ambiguous or inconsistent
verdict. Rule 606(b) is in general accord with prior military law.
2013 Amendment. The committee recommended adding subsection (b) to this rule to align it with the Federal Rules of Evidence. The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 607 is taken without significant change from the Federal Rule.
It supersedes Para. 153 b(1), MCM, 1969 (Rev.), which restricted
impeachment of one's own witness to those situations in which the witness
is indispensable or the testimony of the witness proves to be unexpectedly
adverse.
Rule 607 thus allows a party to impeach its own witness.
Indeed, when relevant, it permits a party to call a witness for the sole
purpose of impeachment. It should be noted, however, that an apparent inconsistency
exists when Rule 607 is compared with Rules 608(b) and 609(a). Although Rule
607 allows impeachment on direct examination, Rules 608(b) and 609(a) would
by their explicit language restrict the methods of impeachment to cross-examination.
The use of the expression "cross-examination" in these rules
appears to be accidental and to have been intended to be synonymous with
impeachment while on direct examination. See generally
S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 298-99
(2d ed. 1977). It is the intent of the Committee that the Rules be so interpreted
unless the Article III courts should interpret the Rules in a different
fashion.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 608(a) is taken verbatim from the Federal Rule. The Rule, which
is consistent with the philosophy behind Rule 404(a), limits use of character
evidence in the form of opinion or reputation evidence on the issue of credibility
by restricting such evidence to matters relating to the character for truthfulness
or untruthfulness of the witness. General good character is not admissible
under the Rule. Rule 608(a) prohibits presenting evidence of good character
until the character of the witness for truthfulness has been attacked. The
Rule is similar to Para. 153 b of the 1969 Manual except
that the Rule, unlike Para. 153 b, applies to all witnesses
and does not distinguish between the accused and other witnesses.
Rule 608(b) is taken from the Federal Rule without significant
change. The Rule is somewhat similar in effect to the military practice found
in Para. 153 b(2) of the 1969 Manual in that it allows use
of specific instances of conduct of a witness to be brought out on cross-examination
but prohibits use of extrinsic evidence. Unlike Para. 153 b(2),
Rule 608(b) does not distinguish between an accused and other witnesses.
The
fact that the accused is subject to impeachment by prior acts of misconduct
is a significant factor to be considered by the military judge when he or
she is determining whether to exercise the discretion granted by the Rule.
Although the Rule expressly limits this form of impeachment to inquiry on
cross-examination, it is likely that the intent of the Federal Rule was to
permit inquiry on direct as well, see Rule 607, and the
use of the term "cross-examination" was an accidental substitute
for "impeachment." See S. Saltzburg & K.
Redden, FEDERAL RULES OF EVIDENCE MANUAL 312-13 (2d ed. 1977). It is
the intent of the Committee to allow use of this form of evidence on direct
examination to the same extent, if any, it is so permitted in the Article
III courts.
The Rule does not prohibit receipt of extrinsic evidence
in the form of prior convictions, Rule 609, or to show bias. Rule 608(c). _
See also_ Rule 613 (Prior statements of witnesses). When the witness
has testified as to the character of another witness, the witness may be
cross-examined as to the character of that witness. The remainder of Rule
608(b) indicates that testimony relating only to credibility does not waive
the privilege against self-incrimination. See generally Rule
Although 608(b) allows examination into specific acts, counsel
should not, as a matter of ethics, attempt to elicit evidence of misconduct
unless there is a reasonable basis for the question. _See generally
_ ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING
TO THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, Prosecution Function
5.7(d); Defense Functions 7.6(d) (Approved draft 1971).
Rule 608(c) is taken from 1969 Manual Para. 153_d_ and
is not found within the Federal Rule. Impeachment by bias was apparently
accidentally omitted from the Federal Rule, see S. Saltzburg
& K. Redden, FEDERAL RULES OF EVIDENCE MANUAL 313-14 (2d ed. 1977),
but is acceptable under the Federal Rules; see, _
e.g.,_ United States v. Leja, 568 F.2d 493 (6th Cir.
1977); _ United States v. Alvarez-Lopez_, 559 F.2d 1155 (9th
Cir. 1977). Because of the critical nature of this form of impeachment and
the fact that extrinsic evidence may be used to show it, the Committee believed
that its omission would be impracticable.
It should be noted
that the Federal Rules are not exhaustive, and that a number of different
types of techniques of impeachment are not explicitly codified.
The
failure to so codify them does not mean that they are no longer permissible. _
See_, e.g., _United states v. Alvarez-Lopez
, supra_ 155; Rule 412. Thus, impeachment by contradiction, _
see also_ Rule 304(a)(2); 311(j), and impeachment via prior inconsistent
statements, Rule 613, remain appropriate. To the extent that the Military
Rules do not acknowledge a particular form of impeachment, it is the intent
of the Committee to allow that method to the same extent it is permissible
in the Article III courts. _ See_, e.g., Rules
402; 403.
Impeachment of an alleged victim of a sexual offense
through evidence of the victim's past sexual history and character is dealt
with in Rule 412, and evidence of fresh complaint is admissible to the extent
permitted by Rules 801 and 803.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 609(a) is taken from the Federal Rule but has been slightly
modified to adopt it to military law. For example, an offense for which a
dishonorable discharge may be adjudged may be used for impeachment. This
continues the rule as found in Para. 153 b(2)(b)(1) of the
1969 Manual. In determining whether a military offense may be used for purposes
of impeachment under Rule 609(a)(1), recourse must be made to the maximum
punishment imposable if the offense had been tried by general court-martial.
Rule
609(a) differs slightly from the prior military rule. Under Rule 609(a)(1),
a civilian conviction's availability for impeachment is solely a function
of its maximum punishment under "the law in which the witness was convicted."
This is different from Para. 153 b(2)(b)(3) of the 1969
Manual which allowed use of a non-federal conviction analogous to a federal
felony or characterized by the jurisdiction as a felony or "as an offense
of comparable gravity." Under the new rule, comparisons and determinations
of relative gravity will be unnecessary and improper.
Convictions
that "involve moral turpitude or otherwise affect . . . credibility"
were admissible for impeachment under Para. 153 b(2)(b)
of the 1969 Manual. The list of potential convictions expressed in Para.
153 b(2)(b) was illustrative only and non-exhaustive. Unlike
the 1969 Manual rule, Rule 609(a) is exhaustive.
Although a conviction
technically fits within Rule 609(a)(1), its admissibility remains subject
to finding by the military judge that its probative value outweighs its prejudicial
effect to the accused.
Rule 609(a)(2) makes admissible convictions
involving "dishonesty or false statement, regardless of punishment."
This is similar to intent in Para. 153_b_(2)(b)(4) of the
1969 Manual which makes admissible "a conviction of any offense involving
fraud, deceit, larceny, wrongful appropriation, or the making of false statement."
The exact meaning of "dishonesty" within the meaning of Rule
609 is unclear and has already been the subject of substantial litigation.
The Congressional intent appears, however, to have been extremely restrictive
with "dishonesty" being used in the sense of untruthfulness. _
See generally_ S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE
MANUAL 336-45 (2d ed. 1977). Thus, a conviction for fraud, perjury,
or embezzlement would come within the definition, but a conviction for simple
larceny would not. Pending further case development in the Article III courts,
caution would suggest close adherence to this highly limited definition.
It
should be noted that admissibility of evidence within the scope of Rule
609(a)(2) is not explicitly subject to the discretion of the military judge.
The application of Rule 403 is unclear.
While the language of
Rule 609(a) refers only to cross-examination, it would appear that the Rule
does refer to direct examination as well. See the Analysis
to Rules 607 and 608(b).
As defined in Rule 609(f), a court-martial
conviction occurs when a sentence has been adjudged.
_
1993 Amendment._ The amendment to Mil. R. Evid. 609(a) is based on
the 1990 amendment to Fed. R. Evid. 609(a). The previous version of Mil.
R. Evid. 609(a) was based on the now superseded version of the Federal Rule.
This amendment removes from the rule the limitation that the conviction may
only be elicited during cross-examination. Additionally, the amendment clarifies
the relationship between Rules 403 and 609. The amendment clarifies that
the special balancing test found in Mil. R. Evid. 609(a)(1) applies to the
accused's convictions. The convictions of all other witnesses are only subject
to the Mil. R. Evid. 403 balancing test. _See Green v. Bock Laundry
Machine Co.,_ 490 U.S. 504 (1989).
2012 Amendment: Rule 609(a) was amended to conform to the Federal Rule by replacing the word "credibility" with the words "character for truthfulness." Rule 609(a)(2) was amended to conform to the Federal Rule.
Rule 609(b) is taken verbatim from the Federal Rule. As it has
already been made applicable to the armed forces, _United States v.
Weaver_, 1 M.J. 111 (C.M.A. 1975), it is consistent with the present
military practice.
Rule 609(c) is taken verbatim from the Federal Rule except that
convictions punishable by dishonorable discharge have been added. Rule 609(c)
has no equivalent in present military practice and represents a substantial
change as it will prohibit use of convictions due to evidence of rehabilitation.
In the absence of a certificate of rehabilitation, the extent to which the
various Armed Forces post-conviction programs, such as the Air Force's 3320th
Correction and Rehabilitation Squadron and the Army's Retraining Brigade,
come within Rule 609(c) is unclear, although it is probable that successful
completion of such a program is "an equivalent procedure based on the
finding of the rehabilitation of the persons convicted" within the
meaning of the Rule.
2012 Amendment: Rule 609(c) was amended to conform to the Federal Rule.
Rule 609(d) is taken from the Federal Rule without significant
change. The general prohibition in the Rule is substantially different from
Para. 153_b_(2)(b) of the 1969 Manual which allowed use of
juvenile adjudications other than those involving an accused. The discretionary
authority vested in the military judge to admit such evidence comports with
the accused's constitutional right to a fair trial. _Davis v. Alaska,
_ 415 U.S. 308 (1974).
The first portion of Rule 609(e) is taken from the Federal Rule
and is substantially different from Para. 153 b(2)(b) of
the 1969 Manual which prohibited use of convictions for impeachment purposes
while they were undergoing appellate review. Under the Rule, the fact of
review may be shown but does not affect admissibility. A different rule applies,
however, for convictions by summary court-martial or by special court-martial
without a military judge. The Committee believed that because a legally trained
presiding officer is not required in these proceedings, a conviction should
not be used for impeachment until review has been completed.
_
February 1986 Amendment:_ The reference in subsection (e) to "Article
65(c)" was changed to "Article 64" to correct an error
in MCM, 1984.
This definition of conviction has been added because of the unique
nature of the court-martial. Because of its recognition that a conviction
cannot result until at least sentencing, _cf. Frederic Lederer, Reappraising
the Legality of Post-trial Interviews,_ 1977 Army Law. 1, 12, the Rule may modify _ United States v.
Mathews,_ 6 M.J. 357 (C.M.A. 1979).
2011 Amendment. Executive Order 13593 of December 13, 2011, amended this rule to conform the rule with the Federal Rules of Evidence.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 610 is taken without significant change from the Federal Rules
and had no equivalent in the 1969 Manual for Courts-Martial. The Rule makes
religious beliefs or opinions inadmissible for the purpose of impeaching
or bolstering credibility. To the extent that such opinions may be critical
to the defense of a case, however, there may be constitutional justification
for overcoming the Rule's exclusion. Cf.
Davis v. Alaska, 415 U.S. 308 (1974).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 611(a) is taken from the Federal Rule without change. It is
a basic source of the military judge's power to control proceedings and replaces
1969 Manual Para. 149 a and that part of Para. 137 dealing
with cumulative evidence. It is within the military judge's discretion to
control methods of interrogation of witnesses. The Rule does not change prior
law. Although a witness may be required to limit an answer to the question
asked, it will normally be improper to require that a "yes" or
"no" answer be given unless it is clear that such an answer will
be a complete response to the question. A witness will ordinarily be entitled
to explain his or her testimony at some time before completing this testimony.
The Manual requirement that questions be asked through the military judge
is now found in Rule 614.
Although the military judge has the
discretion to alter the sequence of proof to the extent that the burden of
proof is not affected, the usual sequence for examination of witnesses is:
prosecution witnesses, defense witnesses, prosecution rebuttal witnesses,
defense rebuttal witnesses, and witnesses for the court. The usual order
of examination of a witness is: direct examination, cross-examination, redirect
examination, recross-examination, and examination by the court. Para. 54 _
a_, MCM, 1969 (Rev.).
1995 Amendment: When
a child witness is unable to testify due to intimidation by the proceedings,
fear of the accused, emotional trauma, or mental or other infirmity, alternative
to live in-court testimony may be appropriate.
See Maryland v. Craig, 497 U.S. 836 (1990); United States v. Romey,
32 M.J. 180 (C.M.A.), _ cert. denied_, 502 U.S. 924 (1991); _
United States v. Batten_, 31 M.J. 205 (C.M.A. 1990); _United
States v. Thompson_, 31 M.J. 168 (C.M.A. 1990), _cert. denied
_, 111 S. Ct. 956 (1991). This is an evolving area of law
with guidance available in case law. The drafters, after specifically considering
adoption of 18 U.S.C. § 3509, determined it more appropriate to allow
the case law evolutionary process to continue.
Rule 611(b) is taken from the Federal Rule without change and replaces
Para. 149 b(1) of the 1969 Manual which was similar in scope.
Under the Rule the military judge may allow a party to adopt a witness and
proceed as if on direct examination. See Rule 301(b)(2)
(judicial advice as to the privilege against self-incrimination for an apparently
uninformed witness); Rule 301(f)(2) (effect of claiming the privilege against
self-incrimination on cross-examination); Rule 303 (Degrading Questions);
and Rule 608(b) (Evidence of Character, Conduct, and Bias of Witness).
Rule 611(c) is taken from the Federal Rule without significant change
and is similar to Para. 149 c of the 1969 Manual. The reference
in the third sentence of the Federal Rule to an "adverse party"
has been deleted as being applicable to civil cases only.
A leading
question is one which suggests the answer it is desired that the witness
give. Generally, a question that is susceptible to being answered by "yes"
or "no" is a leading question.
The use of leading
questions is discretionary with the military judge. Use of leading questions
may be appropriate with respect to the following witnesses, among others:
children, persons with mental or physical disabilities, the extremely elderly,
hostile witnesses, and witnesses identified with the adverse party.
It
is also appropriate with the military judge's consent to utilize leading
questions to direct a witness's attention to a relevant area of inquiry.
_
1999 Amendment:_ Rule 611(d) is new. This amendment to Rule 611 gives
substantive guidance to military judges regarding the use of alternative
examination methods for child victims and witnesses in light of the U.S.
Supreme Court's decision in Maryland v. Craig, 497 U.S.
836 (1990) and the change in Federal law in 18 U.S.C. § 3509. Although _
Maryland v. Craig_ dealt with child witnesses who were themselves
the victims of abuse, it should be noted that 18 U.S.C. § 3509, as
construed by Federal courts, has been applied to allow non-victim child witnesses
to testify remotely. See, e.g., _United States v.
Moses_, 137 F.3d 894 (6th Cir. 1998) (applying § 3509 to a
non-victim child witness, but reversing a child sexual assault conviction
on other grounds) and _ United States v. Quintero_, 21 F.3d
885 (9th Cir. 1994) (affirming conviction based on remote testimony of non-victim
child witness, but remanding for resentencing). This amendment recognizes
that child witnesses may be particularly traumatized, even if they are not
themselves the direct victims, in cases involving the abuse of other children
or domestic violence. This amendment also gives the accused an election to
absent himself from the courtroom to prevent remote testimony. Such a provision
gives the accused a greater role in determining how this issue will be resolved.
2013 Amendment. The committee recommended amending subsection (d)(3) to conform with the United States Supreme Court's holding in Maryland v. Craig, 497 U.S. 836 (1990), and CAAF's holding in United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007). In Craig, the Supreme Court held that, in order for a child witness to be permitted to testify via closed-circuit one-way video, three factors must be met: (1) the trial court must determine that it "is necessary to protect the welfare of the particular child witness"; (2) the trial court must find "that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant"; and (3) the trial court must find "that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis." Craig, 497 U.S. at 855-56. In Pack, CAAF held that, despite the Supreme Court's decision in Crawford v. Washington, the Supreme Court did not implicitly overrule Craig and that all three factors must be present in order to permit a child witness to testify remotely. Pack, 65 M.J. at 384-85. This rule as previously written contradicted these cases because it stated that any one of four factors, rather than all three of those identified in Craig, would be sufficient to allow a child to testify remotely. The committee recommended the changes to ensure that this subsection aligned with the relevant case law.
The language for subsection (5) was taken from 18 U.S.C. § 3509(b)(1)(C), which covers child victims' and child witnesses' rights. There is no comparable Federal Rule of Evidence but the committee believes that a military judge may find that an Article 39(a) session outside the presence of the accused is necessary to make a decision regarding remote testimony. The committee intended to limit the number of people present at the Article 39(a) session in order to make the child feel more at ease, which is why the committee recommended including the language limiting those present to "a representative" of the defense and prosecution, rather than multiple representatives.
The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 612 is taken generally from the Federal Rule but a number of
modifications have been made to adapt the Rule to military practice. Language
in the Federal Rule relating to the Jencks Act, 18 U.S.C. § 3500, which
would have shielded material from disclosure to the defense under Rule 612
was discarded. Such shielding was considered to be inappropriate in view
of the general military practice and policy which utilizes and encourages
broad discovery on behalf of the defense.
The decision of the
president of a special court-martial without a military judge under this
rule is an interlocutory ruling not subject to objection by the members,
Para. 57 a, MCM, 1969 (Rev.).
Rule 612 codifies
the doctrine of past recollection refreshed and replaces that portion of
Para. 146_a_ of the 1969 Manual which dealt with the issue.
Although the 1969 Manual rule was similar, in that it authorized inspection
by the opposing party of a memorandum used to refresh recollection and permitted
it to be offered into evidence by that party to show the improbability of
it refreshing recollection, the Rule is somewhat more extensive as it also
deals with writings used before testifying.
Rule 612 does not
affect in any way information required to be disclosed under any other rule
or portion of the Manual. See, Rule 304(c)(1).
2013 Amendment. The committee recommended revising subsection (b) of this rule to align with the Federal Rules of Evidence. The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 613(a) is taken from the Federal Rule without change. It alters
military practice inasmuch as it eliminates the foundation requirements found
in Para. 153_b_(2)(c) of the 1969 Manual. While it will no
longer be a condition precedent to admissibility to acquaint a witness with
the prior statement and to give the witness an opportunity to either change
his or her testimony or to reaffirm it, such a procedure may be appropriate
as a matter of trial tactics.
It appears that the drafters of
Federal Rule 613 may have inadvertently omitted the word "inconsistent"
from both its caption and the text of Rule 613(a). The effect of that omission,
if any, is unclear.
Rule 613(b) is taken from the Federal Rule without change. It requires
that the witness be given an opportunity to explain or deny a prior inconsistent
statement when the party proffers extrinsic evidence of the statement. Although
this foundation is not required under Rule 613(a), it is required under Rule
613(b) if a party wishes to utilize more than the witness' own testimony
as brought out on cross-examination. The Rule does not specify any particular
timing for the opportunity for the witness to explain or deny the statement
nor does it specify any particular method. The Rule is inapplicable to introduction
of prior inconsistent statements on the merits under Rule 801.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
The first sentence of Rule 614(a) is taken from the Federal Rule
but has been modified to recognize the power of the court members to call
and examine witnesses. The second sentence of the subdivision is new and
reflects the members' power to call or recall witnesses. Although recognizing
that power, the Rule makes it clear that the calling of such witnesses is
contingent upon compliance with these Rules and this Manual. Consequently,
the testimony of such witnesses must be relevant and not barred by any Rule
or Manual provision.
The first sentence of Rule 614(b) is taken from the Federal Rule
but modified to reflect the power under these Rules and Manual of the court-members
to interrogate witnesses. The second sentence of the subdivision is new and
modifies Para. 54_a_ and Para. 149_a_ of the
present manual by requiring that questions of members be submitted to the
military judge in writing. This change in current practice was made in order
to improve efficiency and to prevent prejudice to either party. Although
the Rule states that its intent is to ensure that the questions will "be
in a form acceptable to the military judge," it is not the intent of
the Committee to grant carte blanche to the military judge in this matter.
It is the Committee's intent that the president will utilize the same procedure.
Rule 614(c) is taken from the Federal Rule but modified to reflect
the powers of the members to call and interrogate witnesses. This provision
generally restates prior law but recognizes counsel's right to request an
Article 39(a) session to enter an objection.
2013 Amendment. In subsection (a), the committee recommended substituting the word "relevant" for "appropriate" because relevance is the most accurate threshold for admissibility throughout these rules. Additionally, the committee recommended adding the phrase "Following the opportunity for review by both parties" to subsection (b) to align it with the standard military practice to allow the counsel for both sides to review a question posed by the members, and to voice objections before the military judge rules on the propriety of the question. The committee also recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 615 is taken from the Federal Rule with only minor changes
of terminology. The first portion of the Rule is in conformity with prior
practice, e.g., Para. 53_f_, MCM, 1969 (Rev.).
The second portion, consisting of subdivisions (2) and (3), represents a
substantial departure from prior practice and will authorize the prosecution
to designate another individual to sit with the trial counsel. Rule 615 thus
modifies Para. 53 f. Under the Rule, the military judge
lacks any discretion to exclude potential witnesses who come within the scope
of Rule 615(2) and (3) unless the accused's constitutional right to a fair
trial would be violated. Developing Article III practice recognizes the defense
right, upon request, to have a prosecution witness, not excluded because
of Rule 615, testify before other prosecution witnesses.
Rule
615 does not prohibit exclusion of either accused or counsel due to misbehavior
when such exclusion is not prohibited by the Constitution of the United States,
the Uniform Code of Military Justice, this Manual, or these Rules.
_
2002 Amendment:_ These changes are intended to extend to victims
at courts-martial the same rights granted to victims by the Victims' Rights
and Restitution Act of 1990, 42 U.S.C. § 10606(b)(4),
giving crime victims "[t]he right to be present at all public court proceedings
related to the offense, unless the court determines that testimony by the
victim would be materially affected if the victim heard other testimony at
trial," and the Victim Rights Clarification Act of 1997, 18
U.S.C. § 3510, which is restated in subsection (5). For the purposes of this
rule, the term "victim" includes all persons defined as victims
in 42 U.S.C. § 10607(e)(2), which means "a person that has suffered
direct physical, emotional, or pecuniary harm as a result of the commission
of a crime, including"-(A) in the case of a victim that is an
institutional entity, an authorized representative of the entity; and (B)
in the case of a victim who is under 18 years of age, incompetent, incapacitated,
or deceased, one of the following (in order of preference): (i) a spouse;
another family member; or (vii) another person designated by the court. The
victim's right to remain in the courtroom remains subject to other rules,
such as those regarding classified information, witness deportment, and conduct
in the courtroom. Subsection (4) is intended to capture only those statutes
applicable to courts-martial.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
2015 Amendment: Rule 615(e) was revised to implement Section 1701 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.
Rule 701 is taken from the Federal Rule without change and supersedes
that portion of Para. 138 e, MCM, 1969 (Rev.), which dealt
with opinion evidence by lay witnesses. Unlike the prior Manual rule which
prohibited lay opinion testimony except when the opinion was of a "kind
which is commonly drawn and which cannot, or ordinarily cannot, be conveyed
to the court by a mere recitation of the observed facts," the Rule
permits opinions or inferences whenever rationally based on the perception
of the witness and helpful to either a clear understanding of the testimony
or the determination of a fact in issue. Consequently, the Rule is broader
in scope than the Manual provision it replaces. The specific examples listed
in the Manual, "the speed of an automobile, whether a voice heard was
that of a man, woman or child, and whether or not a person was drunk"
are all within the potential scope of Rule 701.
_ 2004
Amendment:_ Rule 701 was modified based on the amendment to Fed. R. Evid.
701, effective 1 December 2000, and is taken from the Federal Rule without
change. It prevents parties from proffering an expert as a lay witness in
an attempt to evade the gatekeeper and reliability requirements of Rule 702
by providing that testimony cannot qualify under Rule 701 if it is based on
"scientific, technical, or other special knowledge within the scope of Rule
702."
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 702 is taken from the Federal Rule verbatim, and replaces that
portion of Para. 138 e, MCM, 1969 (Rev.), dealing with expert
testimony. Although the Rule is similar to the prior Manual rule, it may
be broader and may supersede _Frye v. United States
_, 293 F.1013 (C.D. Cir. 1923), an issue now being extensively litigated
in the Article III courts. The Rule's sole explicit test is whether the evidence
in question "will assist the trier of fact to understand the evidence
or to determine a fact in issue." Whether any particular piece of evidence
comes within the test is normally a matter within the military judge's discretion.
Under
Rule 103(a) any objection to an expert on the basis that the individual is
not in fact adequately qualified under the Rule will be waived by a failure
to so object.
Para. 142_ e_ of the 1969 Manual,
"Polygraph tests and drug-induced or hypnosis-induced interviews,"
has been deleted as a result of the adoption of Rule 702. Para. 142_
e_ states, "The conclusions based upon or graphically represented
by a polygraph test and conclusions based upon, and the statements of the
person interviewed made during a drug-induced or hypnosis-induced interview
are inadmissible in evidence." The deletion of the explicit prohibition
on such evidence is not intended to make such evidence per se admissible,
and is not an express authorization for such procedures. Clearly, such evidence
must be approached with great care. Considerations surrounding the nature
of such evidence, any possible prejudicial effect on a fact finder, and the
degree of acceptance of such evidence in the Article III courts are factors
to consider in determining whether it can in fact "assist the trier
of fact." As of late 1979, the Committee was unaware of any significant
decision by a United States Court of Appeals sustaining the admissibility
of polygraph evidence in a criminal case, _see e.g., United States
Cardarella_, 570 F.2d 264 (8th Cir. 1978), although the Seventh Circuit, _
see e.g.,_ United States v. Bursten, 560 F.2d 779
(7th Cir. 1977) (holding that polygraph admissibility is within the sound
discretion of the trial judge) and perhaps the Ninth Circuit, _United
States v. Benveniste_, 564 F.2d 335, 339 n.3 (9th Cir. 1977), at
least recognize the possible admissibility of such evidence. There is reason
to believe that evidence obtained via hypnosis may be treated somewhat more
liberally than is polygraph evidence. See, _e.g.,
_ Kline v. Ford Motor Co., 523 F.2d 1067 (9th Cir.
1975).
_ 2004 Amendment:_ Rule 702 was modified
based on the amendment to Fed. R. Evid. 702, effective 1 December 2000, and
is taken from the Federal Rule without change. It provides guidance for courts
and parties as to the factors to consider in determining whether an expert's
testimony is reliable in light of _Daubert v. Merrell Dow Pharmaceuticals,
Inc.,_ 509 U.S. 579 (1993), and _Kumho Tire Co. v. Carmichael,
_ 526 U.S. 137 (1999) (holding that gatekeeper function applies to
all expert testimony, not just testimony based on science).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 703 is taken from the Federal Rule without change. The Rule
is similar in scope to Para. 138 e of the 1969 Manual, but
is potentially broader as it allows reliance upon "facts or data"
whereas the 1969 Manual's limitation was phrased in terms of the personal
observation, personal examination or study, or examination or study "of
reports of others of a kind customarily considered in the practice of the
expert's specialty." Hypothetical questions of the expert are not
required by the Rule.
A limiting instruction may be appropriate
if the expert while expressing the basis for an opinion states facts or data
that are not themselves admissible. See Rule 105.
Whether
Rule 703 has modified or superseded the_ Frye_ test for scientific
evidence, Frye v. United States, 293 F.1013 (D.C. Cir. 1923),
is unclear and is now being litigated within the Article III courts.
_
2004 Amendment:_ Rule 703 was modified based on the amendment
to Fed. R. Evid. 703, effective 1 December 2000, and is virtually identical
to its Federal Rule counterpart. It limits the disclosure to the members
of inadmissible information that is used as the basis of an expert's opinion.
Compare Mil. R. Evid. 705.
2013 Amendment. The committee recommended revising this rule to align with the Federal Rules of Evidence, but in doing so the committee did not intend to change any result in any ruling on evidence admissibility.
Rule 704 is taken from the Federal Rule verbatim. The 1969 Manual
for Courts-Martial was silent on the issue. The Rule does not permit the
witness to testify as to his or her opinion as to the guilt or innocence
of the accused or to state legal opinions. Rather it simply allows testimony
involving an issue which must be decided by the trier of fact. Although the
two may be closely related, they are distinct as a matter of law.
_
February 1986 Amendment:_ Fed. R. Evid. 704(b), by operation of Mil.
R. Evid. 1102, became effective in the military as Mil. R. Evid. 704(b) on
10 April 1985. The Joint-Service Committee on Military Justice considers
Fed. R. Evid. 704(b) an integral part of the Insanity Defense Reform Act,
ch. IV, Pub.L. No. 98-473, 98 Stat. 2067-68 (1984), (hereafter
the Act). Because proposed legislation to implement these provisions of the
Act relating to insanity as an affirmative defense had not yet been enacted
in the UCMJ by the date of this Executive Order, the Committee recommended
that the President rescind the application of Fed. R. Evid. 704(b) to the
military. Even though in effect since 10 April 1985, this change was never
published in the Manual.
1986 Amendment: While
writing the Manual provisions to implement the enactment of Article 50a,
UCMJ ("Military Justice Amendments of 1986," National Defense
Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat.
3905 (1986)), the drafters rejected adoption of Fed. R. Evid. 704(b). The statutory
qualifications for military court members reduce the risk that military court
members will be unduly influenced by the presentation of ultimate opinion
testimony from psychiatric experts.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 705 is taken from the Federal Rule without change and is similar
in result to the requirement in Para. 138 e of the 1969
Manual that the "expert may be required, on direct or cross-examination,
to specify the data upon which his opinion was based and to relate the details
of his observation, examination, or study." Unlike the 1969 Manual,
Rule 705 requires disclosure on direct examination only when the military
judge so requires.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 706(a) is the result of a complete redraft of subdivision (a)
of the Federal Rule that was required to be consistent with Article 46 of
the Uniform Code of Military Justice which was implemented in Paras. 115
and 116, MCM, 1969 (Rev.). Rule 706(a) states the basic rule that prosecution,
defense, military judge, and the court members all have equal opportunity
under Article 46 to obtain expert witnesses. The second sentence of the subdivision
replaces subdivision (b) of the Federal Rule which is inapplicable to the
armed forces in light of Para. 116, MCM, 1969 (Rev.).
Rule 706(b) is taken from Fed. R. Evid. 706(c) without change. The
1969 Manual was silent on the issue, but the subdivision should not change
military practice.
Rule 706(c) is similar in intent to subdivision (d) of the Federal
Rule and adapts that Rule to military practice. The subdivision makes it
clear that the defense may call its own expert witnesses at its own expense
without the necessity of recourse to Para. 116.
2013 Amendment. The committee recommended removing former subsection (b) because the committee believes that the authority of the military judge to tell members that he or she has called an expert witness is implicit in his or her authority to obtain the expert, and therefore the language was unnecessary. Although the language has been removed, the committee intends that the military judge may, in the exercise of discretion, notify the members that he or she called the expert. The committee also recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 707 is new and is similar to Cal. Evid. Code 351.1 (West 1988
Supp.). The Rule prohibits the use of polygraph evidence in courts-martial
and is based on several policy grounds. There is a real danger that court
members will be misled by polygraph evidence that "is likely to be
shrouded with an aura of near infallibility." _United States
that the members accept polygraph evidence as unimpeachable or conclusive,
despite cautionary instructions from the military judge, the members "traditional
responsibility to collectively ascertain the facts and adjudge guilt or
innocence is preempted." Id. There is also a danger
of confusion of the issues, especially when conflicting polygraph evidence
diverts the members' attention from a determination of guilt or innocence
to a judgment of the validity and limitations of polygraphs. This could result
in the court-martial degenerating into a trial of the polygraph machine. _
State v. Grier_, 300 S.E.2d 351 (N.C. 1983). Polygraph evidence also
can result in a substantial waste of time when the collateral issues regarding
the reliability of the particular test and qualifications of the specific
polygraph examiner must be litigated in every case. Polygraph evidence places
a burden on the administration of justice that outweighs the probative value
of the evidence. The reliability of polygraph evidence has not been sufficiently
established and its use at trial impinges upon the integrity of the judicial
system. _ See_ People v. Kegler, 242 Cal.
Rptr. 897 (Cal. Ct. App. 1987). Thus, this amendment adopts a bright-line
rule that polygraph evidence is not admissible by any party to a court-martial
even if stipulated to by the parties. This amendment is not intended to accept
or reject United States v. Gipson, 24 M.J. 343 (C.M.A. 1987),
concerning the standard for admissibility of other scientific evidence under
Mil. R. Evid. 702 or the continued vitality of _Frye v. United States
_, 293 F. 1013 (D.C. Cir. 1923). Finally, subsection (b) of the rule
ensures that any statements which are otherwise admissible are not rendered
inadmissible solely because the statements were made during a polygraph examination.
2013 Amendment. The committee recommended revising this rule for stylistic reasons, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 801(a) is taken from the Federal Rule without change and is
similar to Para. 139 a of the 1969 Manual.
Rule 801(b) is taken from the Federal Rule verbatim and is the same
definition used in prior military practice.
Rule 801(c) is taken from the Federal Rule verbatim. It is similar
to the 1969 Manual definition, found in Para. 139_ a_, which
stated: "A statement which is offered in evidence to prove the truth
of the matters stated therein, but which was not made by the author when
a witness before the court at a hearing in which it is so offered, is hearsay."
Although the two definitions are basically identical, they actually differ
sharply as a result of the Rule's exceptions which are discussed _
infra._
Rule 801(d) is taken from the Federal Rule without change and removes
certain categories of evidence from the definition of hearsay. In all cases,
those categories represent hearsay within the meaning of the 1969 Manual
definition.
Rule 801(d)(1) is taken from the Federal Rule without change and
removes certain prior statements by the witness from the definition of hearsay.
Under the 1969 Manual rule, an out-of-court statement not within an exception
to the hearsay rule and unadopted by the testifying witness, is inadmissible
hearsay notwithstanding the fact that the declarant is now on the stand and
able to be cross-examined, Para. 139_a_;_ United States
justification for the 1969 Manual rule is presumably the traditional view
that out-of-court statements cannot be adequately tested by cross-examination
because of the time differential between the making of the statement and
the giving of the in-court testimony. The Federal Rules of Evidence Advisory
Committee rejected this view in part believing both that later cross-examination
is sufficient to ensure reliability and that earlier statements are usually
preferable to later ones because of the possibility of memory loss. _
See generally,_ 4 J. Weinstein & M. Berger, WEINSTEIN'S EVIDENCE
Para. 801(d)(1)(01) (1978). Rule 801(d)(1) thus not only makes an important
shift in the military theory of hearsay, but also makes an important change
in law by making admissible a number of types of statements that were either
inadmissible or likely to be inadmissible under prior military law.
Rule
801(d)(1)(A) makes admissible on the merits a statement inconsistent with
the in-court testimony of the witness when the prior statement "was
given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition." The Rule does not require that
the witness have been subject to cross-examination at the earlier proceeding,
but requires that the witness must have been under oath and subject to penalty
of perjury. Although the definition of "trial, hearing, or other proceeding"
is uncertain, it is apparent that the Rule was intended to include grand
jury testimony and may be extremely broad in scope. See United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir.), _
cert. denied,_ 429 U.S. 983 (1976) (tape recorded statements given
under oath at a Border Patrol station found to be within the Rule). It should
clearly apply to Article 32 hearings. The Rule does not require as a prerequisite
a statement "given under oath subject to the penalty of perjury."
The mere fact that a statement was given under oath may not be sufficient.
No foundation other than that indicated as a condition precedent in the Rule
is apparently necessary to admit the statement under the Rule. _But
see_ WEINSTEIN'S EVIDENCE 801-74 (1978).
Rule 801(d)(1)(B) makes admissible as substantive evidence on the merits a statement consistent with the in-court testimony of the witness and "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Unlike Rule 801(d)(1)(A), the earlier consistent statement need not have been made under oath or at any type of proceeding. On its face, the Rule does not require that the consistent statement offered have been made prior to the time the improper influence or motive arose or prior to the alleged recent fabrication. Notwithstanding this, the Supreme Court has read such a requirement into the rule. Tome v. United States, 513 U.S. 150 (1995); see also United States v. Allison, 49 M.J. 54 (C.A.A.F. 1998). The limitation does not, however, prevent admission of a consistent statement made after an inconsistent statement but before the improper influence or motive arose. United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977). Rule 801(d)(1)(B) provides a possible means to admit evidence of fresh complaint in prosecution of sexual offenses. Although limited to circumstances in which there is a charge, for example, of recent fabrication, the Rule, when applicable, would permit not only fact of fresh complaint, as is presently possible, but also the entire portion of the consistent statement.
Under Rule 801(d)(1)(C) a statement of identification
is not hearsay. The content of the statement as well as the fact of identification
is admissible. The Rule must be read in conjunction with Rule 321 which governs
the admissibility of statements of pretrial identification.
Rule 801(d)(2) eliminates a number of categories of statements from
the scope of the hearsay rule.
Unlike those statements within the purview of Rule 801(d)(1), statements within the purview of Rule 801(d)(2) would have come within the exceptions to the hearsay rule as recognized in the 1969 Manual.
Consequently, their
"reclassification" is a matter of academic interest only. No
practical differences result. The reclassification results from a belief
that the adversary system impels admissibility and that reliability is not
a significant factor.
Rule 801(d)(2)(A) makes admissible against
a party a statement made in either the party's individual or representative
capacity. This was treated as an admission or confession under Para. 140 _
a_ of the 1969 Manual, and is an exception of the prior hearsay rule.
Rule
801(d)(2)(B) makes admissible "a statement of which the party has manifested
the party's adoption or belief in its truth." This is an adoptive admission
and was an exception to the prior hearsay rule. Cf. Para.
140 a(4) of the 1969 Manual. While silence may be treated
as an admission on the facts of a given case, _ see_ Rule
304(h)(3) and the analysis thereto, under Rule 801(d)(2) that silence must
have been intended by the declarant to have been an assertion. Otherwise,
the statement will not be hearsay within the meaning of Rule 801(d)(2) and
will presumably be admissible, if at all, as circumstantial evidence.
Rule
801(d)(2)(C) makes admissible "a statement by a person authorized by
the party to make a statement concerning the subject." While this was
not expressly dealt with by the 1969 Manual, it would be admissible under
prior law as an admission; Cf. Para. 140_ b_,
utilizing agency theory.
Rule 801(d)(2)(D) makes admissible "a
statement by the party's agent or servant concerning a matter within the
scope of the agency or employment of the agent or servant, made during the
existence of the relationship." These statements would appear to be
admissible under prior law. Statements made by interpreters, as by an individual
serving as a translator for a service member in a foreign nation who is,
for example, attempting to consummate a drug transaction with a non-English
speaking person, should be admissible under Rule 801(d)(2)(D) or Rule 801(d)(2)(C).
Rule
801(d)(2)(E) makes admissible "a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy." This
is similar to the military hearsay exception found in Para. 140 _
b_ of the 1969 Manual. Whether a conspiracy existed for purposes
of this Rule is solely a matter for the military judge. Although this is
the prevailing Article III rule, it is also the consequence of the Military
Rules' modification to Federal Rule of Evidence 104(b). Rule 801(d)(2)(E)
does not address many critical procedural matters associated with the use
of co-conspirator evidence. See generally Comment, Restructuring
the Independent Evidence Requirement of the Coconspirator Hearsay Exception,
127 U. Pa. L. Rev. 1439 (1979). For example, the burden of proof placed on the
proponent is unclear although a preponderance appears to be the developing
Article III trend. Similarly, there is substantial confusion surrounding
the question of whether statements of an alleged co-conspirator may themselves
be considered by the military judge when determining whether the declarant
was in fact a co-conspirator. This process, known as bootstrapping, was not
permitted under prior military law. See, e.g., _
United States v. Duffy_, 49 C.M.R. 208, 210 (A.F.C.M.R. 1974); _
United States v. LaBossiere_, 13 C.M.A. 337, 339, 32 C.M.R. 337,
339 (1962). A number of circuits have suggested that Rule 104(a) allows the
use of such statements, but at least two circuits have held that other factors
prohibit bootstrapping. United States v. James, 590 F.2d
575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979); _
United States v. Valencia_, 609 F.2d 603 (2d Cir. 1979). Until such
time as the Article III practice is settled, discretion would dictate that
prior military law be followed and that bootstrapping not be allowed. Other
procedural factors may also prove troublesome although not to the same extent
as bootstrapping. For example, it appears to be appropriate for the military
judge to determine the co-conspirator question in a preliminary Article 39(a)
session. Although receipt of evidence "subject to later connection"
or proof is legally possible, the probability of serious error, likely requiring
a mistrial, is apparent.
Rule 801(d)(2)(E) does not appear to
change what may be termed the "substantive law" relating to statements
made by co-conspirators. Thus, whether a statement was made by a co-conspirator
in furtherance of a conspiracy is a question for the military judge, and
a statement made by an individual after he or she was withdrawn from a conspiracy
is not made "in furtherance of the conspiracy."
Official
statements made by an officer-as by the commanding officer of a battalion,
squadron, or ship, or by a staff officer, in an endorsement of other communication-are
not excepted from the operation of the hearsay rule merely by reason of the
official character of the communication or the rank or position of the officer
making it.
The following examples of admissibility under this
Rule may be helpful:
The defense presents the testimony of C that just before the assault
C heard B say to A that B was about to kill A with B's knife. The testimony
of C is not hearsay, for it is offered to show that A acted in self-defense
because B made the statement and not to prove the truth of B's statement.
If B testifies at trial, the testimony of B that she had previously
identified A as her attacker at an identification lineup would be admissible
under Rule 801(d)(1)(C) to prove that it was A who raped B.
him orally by Lieutenant B.
C is able to testify that he heard Lieutenant B give the order to
A. This testimony, including testimony of C as to the terms of the order,
would not be hearsay.
A is able to testify that B told A that B saw the accused leave
the quarters in which the locker was located with a bundle resembling clothes
about the same time the clothes were stolen. This testimony from A would
not be admissible to prove that facts stated by B.
A policeman is able to testify that while on duty he saw the accused
go into a shop with a bundle under his arm; that he entered the shop and
the accused ran away; that he was unable to catch the accused; and that thereafter
the policeman asked the proprietor of the shop what the accused was doing
there; and that the proprietor replied that the accused sold him some uniforms
for which he paid the accused $30. Testimony by the policeman as to the reply
of the proprietor would be hearsay if it was offered to prove the facts stated
by the proprietor. The fact that the policeman was acting in the line of
duty at the time the proprietor made the statement would not render the evidence
admissible to prove the truth of the statement.
that the accused did not strike the alleged victim.
On cross-examination by the prosecution, the witness admits that
at a preliminary investigation he stated that the accused had struck the
alleged victim. The testimony of the witness as to this statement will be
admissible if he was under oath at the time and subject to a prosecution
for perjury.
2013 Amendment. The committee recommended changing the title of subsection (d)(2) from "Admission by party-opponent" to "An Opposing Party's Statement" to conform to the Federal Rules of Evidence. The term "admission" is misleading because a statement falling under this exception need not be an admission and also need not be against the party's interest when spoken. In making this change, the committee did not intend to change any result in any ruling on evidence admissibility.
Rule 802 is taken generally from the Federal Rule but has been
modified to recognize the application of any applicable Act of Congress.
Although
the basic rule of inadmissibility for hearsay is identical with that found
in Para. 139_a_ of the 1969 Manual, there is a substantial
change in military practice as a result of Rule 103(a). Under the 1969 Manual,
hearsay was incompetent evidence and did not require an objection to be inadmissible.
Under the new Rules, however, admission of hearsay will not be error unless
there is an objection to the hearsay. _ See_ Rule 103(a).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 803 is taken generally from the Federal Rule with modifications
as needed for adaptation to military practice. Overall, the Rule is similar
to practice under Manual Paras. 142 and 144 of the 1969 Manual. The Rule
is, however, substantially more detailed and broader in scope than the 1969
Manual.
Rule 803(1) is taken from the Federal Rule verbatim. The exception
it establishes was not recognized in the 1969 Manual for Courts-Martial.
It is somewhat similar to a spontaneous exclamation, but does not require
a startling event. A fresh complaint by a victim of a sexual offense may
come within this exception depending upon the circumstances.
Rule 803(2) is taken from the Federal Rule verbatim. Although similar
to Para. 142 b of the 1969 Manual with respect to spontaneous
exclamations, the Rule would appear to be more lenient as it does not seem
to require independent evidence that the startling event occurred. An examination
of the Federal Rules of Evidence Advisory Committee Note indicates some
uncertainty, however. S. Saltzburg & K. Redden, FEDERAL RULES OF EVIDENCE
MANUAL 540 (2d ed. 1977). A fresh complaint of a sexual offense may come
within this exception depending on the circumstances.
Rule 803(3) is taken from the Federal Rule verbatim. The Rule is
similar to that found in 1969 Manual Para. 142d but may be slightly more
limited in that it may not permit statements by an individual to be offered
to disclose the intent of another person. Fresh complaint by a victim of
a sexual offense may come within this exception.
Rule 803(4) is taken from the Federal Rule verbatim. It is substantially
broader than the state of mind or body exception found in Para. 142 _
d_ of the 1969 Manual. It allows, among other matters, statements
as to the cause of the medical problem presented for diagnosis or treatment.
Potentially, the Rule is extremely broad and will permit statements made
even to non-medical personnel (e.g., members of one's family)
and on behalf of others so long as the statements are made for the purpose
of diagnosis or treatment. The basis for the exception is the presumption
that an individual seeking relief from a medical problem has incentive to
make accurate statements. See generally, 4 J. Weinstein
& M. Berger, WEINSTEIN'S EVIDENCE Para. 804(4)(01) (1978). The admissibility
under this exception of those portions of a statement not relevant to diagnosis
or treatment is uncertain. Although statements made to a physician, for example,
merely to enable the physician to testify, do not appear to come within the
Rule, statements solicited in good faith by others in order to ensure the
health of the declarant would appear to come within the Rule. Rule 803(4)
may be used in an appropriate case to present evidence of fresh complaint
in a sexual case.
Rule 803(5) is taken from the Federal Rule without change, and is
similar to the present exception for past recollection recorded found in
Paras. 146 a and 149 c(1)(b) of the 1969
Manual except that under the Rule the memorandum may be read but not presented
to the fact finder unless offered by the adverse party.
Rule 803(6) is taken generally from the Federal Rule. Two modifications
have been made, however, to adapt the rule to military practice. The definition
of "business" has been expanded to explicitly include the armed
forces to ensure the continued application of this hearsay exception, and
a descriptive list of documents, taken generally from 1969 Manual Para. 144 _
d_, has been included. Although the activities of the armed forces
do not constitute a profit making business, they do constitute a business
within the meaning of the hearsay exception, _ see_ Para. 144 _
c_, of the 1969 Manual, as well as a "regularly conducted activity."
The
specific types of records included within the Rule are those which are normally
records of regularly conducted activity within the armed forces. They are
included because of their importance and because their omission from the
Rule would be impracticable. The fact that a record is of a type described
within subdivision does not eliminate the need for its proponent to show
that the_ particular_ record comes within the Rule when the
record is challenged; the Rule does establish that the _ types_ of
records listed are normally business records.
Chain of custody
receipts or documents have been included to emphasize their administrative
nature. Such documents perform the critical function of accounting for property
obtained by the United States Government. Although they may be used as prosecution
evidence, their primary purpose is simply one of property accountability.
In view of the primary administrative purpose of these matters, it was necessary
to provide expressly for their admissibility as an exception to the hearsay
rule in order to clearly reject the interpretation of Para. 144 _
d_ of the 1969 Manual with respect to chain of custody forms as set
forth in United States v. Porter, 7 M.J. 32 (C.M.A. 1979)
and United States v. Nault, 4 M.J. 318 (C.M.A. 1978) insofar
as they concerned chain of custody forms.
Laboratory reports
have been included in recognition of the function of forensic laboratories
as impartial examining centers. The report is simply a record of "regularly
conducted" activity of the laboratory. _See, e.g., United States
Strangstalien_, 7 M.J. 225 (C.M.A. 1979); _United States
Evans_, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972).
Paragraph
144 d prevented a record "made principally with a
view to prosecution, or other disciplinary or legal action . . .rdquo;
from being admitted as a business record. The limitation has been deleted, _
but see_ Rule 803(8)(B) and its Analysis. It should be noted that
a record of "regularly conducted activity" is unlikely to have
a prosecutorial intent in any event.
The fact that a record may
fit within another exception,_ e.g._, Rule 803(8), does not
generally prevent it from being admissible under this subdivision although
it would appear that the exclusion found in Rule 803(8)(B) for "matters
observed by police officers and other personnel acting in a law enforcement
capacity" prevent any such record from being admissible as a record
of regularly conducted activity. Otherwise the limitation in subdivision
Rule 803(8)(B).
Rule 803(6) is generally similar to the 1969 Manual
rule but is potentially broader because of its use of the expression "regularly
conducted" activity in addition to "business." It also
permits records of opinion which were prohibited by Para. 144 d
of the 1969 Manual. Offsetting these factors is the fact that the Rule requires
that the memorandum was "made at or near the time by, or from information
transmitted by a person with knowledge . . .," but Para. 144 _
c_ of the 1969 Manual rule expressly did not require such knowledge
as a condition of admissibility.
_ 2004 Amendment:_ Rule
803(6) was modified based on the amendment to Fed. R. Evid. 803(6), effective
1 December 2000. It permits a foundation for business records to be made
through certification to save the parties the expense and inconvenience of
producing live witnesses for what is often perfunctory testimony. The Rule
incorporates federal statutes that allow certification in a criminal proceeding
in a court of the United States. See, e.g., 18 U.S.C. §
3505 (Foreign records of regularly conducted activity.) The Rule does not
include foreign records of regularly conducted business activity in civil
cases as provided in its Federal Rule counterpart. This Rule works together
with Mil. R. Evid. 902(11).
of paragraph (6).
Rule 803(7) is taken verbatim from the Federal Rule. The Rule is
similar to Paras. 143 a(2)(h) and 143 b(3)
of the 1969 Manual.
Rule 803(8) has been taken generally from the Federal Rule but has
been slightly modified to adapt it to the military environment. Rule 803(8)(B)
has been redrafted to apply to "police officers and other personnel
acting in a law enforcement capacity" rather the Federal Rule's "police
officers and other law enforcement personnel." The change was necessitated
by the fact that all military personnel may act in a disciplinary capacity.
Any officer, for example, regardless of assignment, may potentially act as
a military policeman. The capacity within which a member of the armed forces
acts may be critical.
The Federal Rule was also modified to include
a list of records that, when made pursuant to a duty required by law, will
be admissible notwithstanding the fact that they may have been made as "matters
observed by police officers and other personnel acting in a law enforcement
capacity." Their inclusion is a direct result of the fact, discussed
above, that military personnel may all function within a law enforcement
capacity. The Committee determined it would be impracticable and contrary
to the intent of the Rule to allow the admissibility of records which are
truly administrative in nature and unrelated to the problems inherent in
records prepared only for purposes of prosecution to depend upon whether
the maker was at that given instant acting in a law enforcement capacity.
The language involved is taken generally from Para. 144 b of
the 1969 Manual. Admissibility depends upon whether the record is "a
record of a fact or event if made by a person within the scope of his official
duties and those duties included a duty to know or ascertain through appropriate
and trustworthy channels of information the truth of the fact or event . . ."
Whether any given record was obtained in such a trustworthy fashion is a
question for the military judge. The explicit limitation on admissibility
of records made "principally with a view to prosecution" found
in Para. 144 d has been deleted.
The fact that
a document may be admissible under another exception to the hearsay rule, _
e.g._, Rule 803(6), does not make it inadmissible under this subdivision.
Military
Rule of Evidence 803(8) raises numerous significant questions. Rule 803(8)(A)
extends to "records, reports, statements, or data compilations"
of public offices or agencies, setting forth (A) the activities of the office
or agency. The term "public office or agency" within this
subdivision is defined to include any government office or agency including
those of the armed forces. Within the civilian context, the definition of
"public offices or agencies" is fairly clear and the line of
demarcation between governmental and private action can be clearly drawn
in most cases. The same may not be true within the armed forces. It is unlikely
that every action taken by a servicemember is an "activity" of
the department of which he or she is a member. Presumably, Rule 803(8) should
be restricted to activities of formally sanctioned instrumentalities roughly
similar to civilian entities. For example, the activities of a squadron headquarters
or a staff section would come within the definition of "office or agency."
Pursuant to this rationale, there is no need to have a military regulation
or directive to make a statement of a "public office or agency"
under Rule 803(8)(A). However, such regulations or directives might well
be highly useful in establishing that a given administrative mechanism was
indeed an "office or agency" within the meaning of the Rule.
Rule
803(8)(B) encompasses "matters observed pursuant to duty imposed by
law as to which matters there was a duty to report. . .." This portion
of Rule 803(8) is broader than subdivision (8)(A) as it extends to far more
than just the normal procedures of an office or agency. Perhaps because of
this extent, it requires that there be a specific duty to observe and report.
This duty could take the form of a statement, general order, regulation,
or any competent order.
The exclusion in the Federal Rule for
"matters observed by police officers" was intended to prevent
use of the exception for evaluative reports as the House Committee believed
them to be unreliable. Because of the explicit language of the exclusion,
normal statutory construction leads to the conclusion that reports which
would be within Federal or Military Rule 803(8) but for the exclusion in
(8)(B) are not otherwise admissible under Rule 803(6). Otherwise the inclusion
of the limitation would serve virtually no purpose whatsoever. There is no
contradiction between the exclusion in Rule 803(8)(B) and the specific documents
made admissible in Rule 803(8) (and Rule 803(6)) because those documents
are not matters "observed by police officers and other personnel acting
in a law enforcement capacity." To the extent that they might be so
considered, the specific language included by the Committee is expressly
intended to reject the subdivision (8)(B) limitation. Note, however, that
all forms of evidence not within the specific item listing of the Rule but
within the (8)(B) exclusion will be admissible insofar as Rule 803(8) is
concerned, whether the evidence is military or civilian in origin.
A
question not answered by Rule 803(8) is the extent to which a regulation
or directive may circumscribe Rule 803(8). Thus, if a regulation establishes
a given format or procedure for a report which is not followed, is an otherwise
admissible piece of evidence inadmissible for lack of conformity with the
regulation or directive? The Committee did not address this issue in the
context of adopting the Rule. However, it would be at least logical to argue
that a record not made in substantial conformity with an implementing directive
is not sufficiently reliable to be admissible. See Rule
this matter to the extent to which it is not based purely on now obsolete
Manual provisions. As the modifications to subdivision (8) dealing with
specific records retains the present Manual language, it is particularly likely
that present case law will survive in this area.
Rule 803(8)(C)
makes admissible, but only against the Government, "factual findings
resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness." This provision will make factual findings made, for
example, by an Article 32 Investigating Officer or by a Court of Inquiry
admissible on behalf of an accused. Because the provision applies only to
"factual findings," great care must be taken to distinguish such
factual determinations from opinions, recommendations, and incidental inferences.
Rule 803(9) is taken verbatim from the Federal Rule and had no
express equivalent in the 1969 Manual.
Rule 803(10) is taken verbatim from the Federal Rules and is similar
to 1969 Manual Para. 143 a(2)(g).
certificates: Family records.
Rule 802(11)-(13) are all taken verbatim from the Federal
Rules and had no express equivalents in the 1969 Manual.
in documents affecting an interest in property; Statements in ancient documents.
Rules 803(14)-(16) are taken verbatim from the Federal Rules
and had no express equivalents in the 1969 Manual. Although intended primarily
for civil cases, they all have potential importance to courts-martial.
Rule 803(17) is taken generally from the Federal Rule. Government
price lists have been added because of the degree of reliance placed upon
them in military life. Although included within the general Rule, the Committee
believed it inappropriate and impracticable not to clarify the matter by
specific reference. The Rule is similar in scope and effect to the 1969 Manual
Para. 144 f except that it lacks the Manual's specific
reference to an absence of entries. The effect, if any, of the difference
is unclear.
Rule 803(18) is taken from the Federal Rule without change. Unlike
Para. 138 e of the 1969 Manual, which allowed use of such
statements only for impeachment, this Rule allows substantive use on the
merits of statements within treaties if relied upon in direct testimony or
called to the expert's attention on cross-examination. Such statements may
not, however, be given to the fact finder as exhibits.
boundaries or general history.
Rules 803(19)-(20) are taken without change from the Federal
Rules and had no express equivalents in the 1969 Manual.
Rule 803(21) is taken from the Federal Rule without change. It is
similar to Para. 138 f of the 1969 Manual in that it creates
an exception to the hearsay rule for reputation evidence. "Reputation"
and "community" are defined in Rule 405(d), and "community"
includes a "military organization regardless of size." Affidavits
and other written statements are admissible to show character under Rule
405(c), and, when offered pursuant to that Rule, are an exception to the
hearsay rule.
Rule 803(22) is taken from the Federal Rule but has been modified
to recognize convictions of a crime punishable by a dishonorable discharge,
a unique punishment not present in civilian life. See also Rule
609 and its Analysis.
There is no equivalent to this Rule in
military law. Although the Federal Rule is clearly applicable to criminal
cases, its original intent was to allow use of a prior criminal conviction
in a subsequent civil action. To the extent that it is used for criminal
cases, significant constitutional issues are raised, especially if the prior
conviction is a foreign one, a question almost certainly not anticipated
by the Federal Rules Advisory Committee.
Rule 803(23) is taken verbatim from the Federal Rule, and had no
express equivalent in the 1969 Manual. Although intended for civil cases,
it clearly has potential use in courts-martial for such matters as proof
of jurisdiction.
2013 Amendment. The committee recommended removing subsection (24), which stated: "Other Exceptions: [Transferred to Mil. R. Evid. 807]" because practitioners are generally aware that Mil. R. Evid. 807 covers statements not specifically covered in this rule, and therefore the subsection was unnecessary. The committee also recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 805 is taken verbatim from the Federal Rule. Although
the 1969 Manual did not exactly address the issue, the military rule is identical
with the new rule.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 806 is taken from the Federal Rule without change. It
restates the prior military rule that a hearsay declarant or statement may
always be contradicted or impeached. The Rule eliminates any requirement
that the declarant be given "an opportunity to deny or explain"
an inconsistent statement or inconsistent conduct when such statement or
conduct is offered to attack the hearsay statement. As a result, Rule 806
supersedes Rule 613(b) which would require such an opportunity for a statement
inconsistent with in-court testimony.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 807 was adopted on 30 May 1998 without change from the Federal Rule and represents the residual exception to the hearsay rule formerly contained in Mil. R. Evid. 803(24) and Mil. R. Evid. 804(b)(5).
The Rule strikes a balance between the general policy behind the Rules of Evidence of permitting admission of probative and reliable evidence and the congressional intent "that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances." S. Rep. No. 93-1277, reprinted in 1974 U.S.C.C.A.N. 7051, 7066. Mil. R. Evid. 807 represents the acceptance of the so-called "catch-all" or "residual" exception to the hearsay rule. Because of the constitutional concerns associated with hearsay statements, the courts have created specific foundational requirements in order for residual hearsay to be admitted. See United States v. Haner, 49 M.J. 72, 77-78 (C.A.A.F. 1998). These requirements are: necessity, materiality, reliability, and notice.
The necessity prong "essentially creates a 'best evidence' requirement." United States v. Kelley, 45 M.J. 275, 280 (C.A.A.F. 1996) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991)). Coupled with the rule's materiality requirement, necessity represents an important fact that is more than marginal or inconsequential and is in furtherance of the interests of justice and the general purposes of the rules of evidence.
There are two alternative tests in order to fulfill the reliability condition. If the residual hearsay is a "non-testimonial statement," the proponent of the statement must demonstrate that the statement has particularized guarantees of trustworthiness as shown from the totality of the circumstances. Idaho v. Wright, 497 U.S. 805 (1990). The factors surrounding the taking of the statement and corroboration by other evidence should be examined to test the statement for trustworthiness. The Court of Appeals for the Armed Forces has held that the Supreme Court's prohibition against bolstering the indicia of reliability under a Sixth Amendment analysis does not apply to a residual hearsay analysis. Therefore, in addition to evidence of the circumstances surrounding the taking of the statement, extrinsic evidence can be considered. United States v. McGrath, 39 M.J. 158, 167 (C.M.A. 1994). However, if the residual hearsay is a "testimonial statement," e.g. "affidavits, custodial examinations, prior testimony that the [accused] was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," the proponent of the statement must demonstrate that the declarant of the statement is unavailable and the accused had a prior opportunity to cross-examine the declarant on the statement. Crawford v. Washington, 541 U.S. 36 (2004).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 901(a) is taken verbatim from the Federal Rule, and is similar
to Para. 143 b of the 1969 Manual, which stated in pertinent
part that: "A writing may be authenticated by any competent proof that
it is genuine-is in fact what it purports or is claimed to be."
Unlike the 1969 Manual provision, however, Rule 901(a) is not limited to
writings and consequently is broader in scope. The Rule supports the requirement
for logical relevance. See Rule 401.
There is
substantial question as to the proper interpretation of the Federal Rule
equivalent of Rule 901(a). The Rule requires only "evidence sufficient
to support a finding that the matter in question is what its proponent claims."
It is possible that this phrasing supersedes any formulaic approach to authentication
and that rigid rules such as those that have been devised to authenticate
taped recordings, for example, are no longer valid. On the other hand, it
appears fully appropriate for a trial judge to require such evidence as is
needed "to support a finding that the matter in question is what its
proponent claims," which evidence may echo in some cases the common
law formulations. There appears to be no reason to believe that the Rule
will change the present law as it affects chains of custody for real
evidence-especially if fungible. Present case law would appear to be consistent with
the new Rule because the chain of custody requirement has not been applied
in a rigid fashion. A chain of custody will still be required when it is
necessary to show that the evidence is what it is claimed to be and, when
appropriate, that its condition is unchanged. Rule 901(a) may make authentication
somewhat easier, but is unlikely to make a substantial change in most areas
of military practice.
As is generally the case, failure to object
to evidence on the grounds of lack of authentication will waive the objection. _
See_ Rule 103(a).
Rule 901(b) is taken verbatim from the Federal Rule with the exception
of a modification to Rule 901(b)(10). Rule 901(b)(10) has been modified by
the addition of "or by applicable regulations prescribed pursuant to
statutory authority." The new language was added because it was viewed
as impracticable in military practice to require statutory or Supreme Court
action to add authentication methods. The world wide disposition of the armed
forces with their frequent redeployments may require rapid adjustments in
authentication procedures to preclude substantial interference with personnel
practices needed to ensure operational efficiency. The new language does
not require new statutory authority. Rather, the present authority that exists
for the various Service and Departmental Secretaries to issue those regulations
necessary for the day to day operations of their department is sufficient.
Rule
901(b) is a non-exhaustive list of illustrative examples of authentication
techniques. None of the examples are inconsistent with prior military law
and many are found within the 1969 Manual, see, Para. 143 _
b_. Self-authentication is governed by Rule 902.
2013 Amendment. The committee recommended revising this rule to align with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 902 has been taken from the Federal Rule without significant
change except that a new subdivision, 4a, has been added and subdivisions
Rule 902(1) is taken verbatim from the Federal Rule, and is similar
to aspects of Paras. 143 b(2)(c) and (d) of the 1969 Manual.
The Rule does not distinguish between original document and copies. A seal
is self-authenticating and, in the absence of evidence to the contrary, is
presumed genuine. Judicial notice is not required.
Rule 902(2) is taken from the Federal Rule without change. It is
similar in scope to aspects of Paras. 143 b(2)(c) and (d)
of the 1969 Manual in that it authorizes use of a certification under seal
to authenticate a public document not itself under seal. This provision is
not the only means of authenticating a domestic public record under this
Rule. _ Compare_ Rule 902(4); 902(4a).
Rule 902(3) is taken without change from the Federal Rule. Although
the Rule is similar to Paras. 143 b(2)(e) and (f) of the
1969 Manual, the Rule is potentially narrower than the prior military one
as the Rule does not permit "final certification" to be made
by military personnel as did the Manual rule nor does it permit authentication
made by military personnel as did the Manual rule nor does it permit authentication
made solely pursuant to the laws of the foreign nation. On the other hand,
the Rule expressly permits the military judge to order foreign documents
to "be treated as presumptively authentic without final certification
or permit them to be evidenced by an attested summary with or without final
certification."
Rule 902(4) is taken verbatim from the Federal Rule except that
it has been modified by adding "or applicable regulations prescribed
pursuant to statutory authority." The additional language is required
by military necessity and includes the now existing statutory powers of the
President and various Secretaries to promulgate regulations. _See,
generally_, Analysis to Rule 901(b).
Rule 902(4) expands
upon prior forms of self-authentication to acknowledge the propriety of certified
public records or reports and related materials domestic or foreign, the
certification of which complies with subdivisions (1), (2), or (3) of the
Rule.
certificates.
This provision is new and is taken from the third rule.subparagraph
of Para. 143 b(2)(c) of the 1969 Manual. It has been inserted
due to the necessity to facilitate records of the United States in general
and military records in particular. Military records do not have seals and
it would not be practicable to either issue them or require submission of
documents to those officials with them. In many cases, such a requirement
would be impossible to comply with due to geographical isolation or the unwarranted
time such a requirement could demand.
An "attesting certificate"
is a certificate or statement, signed by the custodian of the record or the
deputy or assistant of the custodian, which in any form indicates that the
writing to which the certificate or statement refers is a true copy of the
record or an accurate "translation" of a machine, electronic,
or coded record, and the signer of the certificate or statement is acting
in an official capacity as the person having custody of the record or as
the deputy or assistant thereof. See Para. 143 _
a_(2)(a) of the 1969 Manual. An attesting certificate does not require
further authentication and, absent proof to the contrary, the signature of
the custodian or deputy or assistant thereof on the certificate is presumed
to be genuine.
and the like; Acknowledged documents; Commercial paper and related documents.
Rules 902(5)-(9) are taken verbatim from the Federal Rules
and have no equivalents in the 1969 Manual or in military law.
Rule 902(10) was taken from the Federal Rule but was modified by
adding "and Regulations" in the caption and "or by applicable
regulation prescribed pursuant to statutory authority." _See
generally_ the Analysis to Rule 901(b)(10) for the reasons for the
additional language. The statutory authority referred to includes the presently
existing authority for the President and various Secretaries to prescribe
regulations.
Rule 902(11) was modified based on the amendment to Fed. R. Evid.
902(11), effective 1 December 2000, and is taken from the Federal Rule without
change. It provides for self-authentication of domestic business records
and sets forth procedures for preparing a declaration of a custodian or other
qualified witness that will establish a sufficient foundation for the admissibility
of domestic business records. This Rule works together with Mil. R. Evid.
803(6).
2013 Amendment. The committee recommended adding language to subsection (11) to permit the military judge to admit non-noticed documents even after the trial has commenced if the offering party shows good cause to do so. The committee also recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 903 is taken verbatim from the Federal Rule and has no
express equivalent in the 1969 Manual.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1001(1) is taken verbatim from the Federal Rule and is similar
in scope to Para. 143 d of the 1969 Manual. Although the
1969 Manual was somewhat more detailed, the Manual was clearly intended to
be expansive. The Rule adequately accomplishes the identical purpose through
a more general reference.
Rule 1001(2) is taken verbatim from the Federal Rule and had no
express equivalent in the 1969 Manual. It does, however, reflect current
military law.
Rule 1001(3) is taken verbatim from the Federal Rule and is similar
to Para. 143 a(1) of the 1969 Manual. The 1969 Manual,
however, treated "duplicate originals," i.e.,
carbon and photographic copies made for use as an original, as an "original"
while Rule 1001(4) treats such a document as a "duplicate."
Rule 1004(4) is taken from the Federal Rule verbatim and includes
those documents Para. 143 a(1) of the 1969 Manual defined
as "duplicate originals." In view of Rule 1003's rule of admissibility
for "duplicate," no appreciable negative result stems from the
reclassification.
2013 Amendment. The committee recommended revising this rule to align with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1002 is taken verbatim from the Federal Rule except that
"this Manual" has been added in recognition of the efficacy of
other Manual provisions. The Rule is similar in scope to the best evidence
rule found in Para. 143 a(19) of the 1969 Manual except
that specific reference is made in the rule to recordings and photographs.
Unlike the 1969 Manual, the Rule does not contain the misleading reference
to "best evidence" and is plainly applicable to writings, recordings,
or photographs.
It should be noted that the various exceptions
to Rule 1002 are similar to but not identical with those found in the 1969
Manual. _ Compare_ Rules 1005-1007 with Para.
143_ a_(2)(f) of the 1969 Manual. For example, Paras. 143 _
a_ (2)(e) and 144 c of the 1969 Manual excepted banking
records and business records from the rule as categories while the Rule does
not. The actual difference in practice, however, is not likely to be substantial
as Rule 1003 allows admission of duplicates unless, for example, "a
genuine question is raised as to the authenticity of the original."
This is similar in result to the treatment of business records in Para. 144 _
a_ of the 1969 Manual. Omission of other 1969 Manual exceptions,
e.g., certificates of fingerprint comparison and identity,
see Rule 703, 803, evidence of absence of official or business
entries, and copies of telegrams and radiograms, do not appear substantial
when viewed against the entirety of the Military Rules which are likely to
allow admissibility in a number of ways.
The Rule's reference
to "Act of Congress" will now incorporate those statutes that
specifically direct that the best evidence rule be inapplicable in one form
or another. See, e.g., 1 U.S.C. § 209 (copies of District
of Columbia Codes of Laws). As a rule, such statutes permit a form of authentication
as an adequate substitute for the original document.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1003 is taken verbatim from the Federal Rule. It is both
similar to and distinct from the 1969 Manual. To the extent that the Rule
deals with those copies which were intended at the time of their creation
to be used as originals, it is similar to the 1969 Manual's treatment of
"duplicate originals," Para. 143 a(1), except
that under the 1969 Manual there was no distinction to be made between originals
and "duplicate originals". Accordingly, in this case the Rule
would be narrower than the 1969 Manual. To the extent that the Rule deals
with copies not intended at their time of creation to serve as originals,
however, _ e.g._, when copies are made of pre-existing documents
for the purpose of litigation, the Rule is broader than the 1969 Manual because
that Manual prohibited such evidence unless an adequate justification for
the non-production of the original existed.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1004 is taken from the Federal Rule without change, and
is similar in scope to the 1969 Manual. Once evidence comes within the scope
of Rule 1004, secondary evidence is admissible without regard to whether
"better" forms of that evidence can be obtained. Thus, no priority
is established once Rule 1002 is escaped. Although the 1969 Manual stated
in Para. 143 a(2) that "the contents may be proved
by an authenticated copy or by the testimony of a witness who has seen and
can remember the substance of the writing" when the original need not
be produced, that phrasing appears illustrative only and not exclusive.
Accordingly, the Rule, the Manual, and common law are in agreement in not
requiring categories of secondary evidence.
Rule 1004(1) is similar to the 1969 Manual except that the Rule
explicitly exempts originals destroyed in "bad faith." Such an
exemption was implicit in the 1969 Manual.
Rule 1004(2) is similar to the justification for nonproduction in
Para. 143 a(2) of the 1969 Manual, "an admissible
writing. . . cannot feasibly be produced."
Rule 1004(3) is similar to the 1969 Manual provision
in Para. 143 a(2) that when a document is in the possession
of the accused the original need not be produced except that the 1969 Manual
explicitly did not require notice to the accused, and the Rule may require
such notice. Under the Rule, the accused must be "put on notice, by
the pleadings or otherwise, that the contents would be subject of proof at
the hearing." Thus, under certain circumstances, a formal notice to
the accused may be required. Under no circumstances should such a request
or notice be made in the presence of the court members. The only purpose
of such notice is to justify use of secondary evidence and does not serve
to compel the surrender of evidence from the accused. It should be noted
that Rule 1004(3) acts in favor of the accused as well as the prosecution
and allows notice to the prosecution to justify defense use of secondary
evidence.
Rule 1004 is not found within the Manual but restates prior military
law. The intent behind the Rule is to avoid unnecessary delays and expense.
It is important to note that important matters which may appear collateral
may not be so in fact due to their weight. _See, e.g., United States
divorce decree of critical prosecution witness not collateral when witness
would be prevented from testifying due to spousal privilege if the divorce
were not valid). The Rule incorporates this via its use of the expression
"related to a controlling issue."
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1005 is taken verbatim from the Federal Rule except that
"or attested to" has been added to conform the Rule to the new
Rule 902(4a). The Rule is generally similar to Para. 143 a(2)(c)
of the 1969 Manual although some differences do exist. The Rule is somewhat
broader in that it applies to more than just "official records."
Further, although the 1969 Manual permitted "a properly authenticated"
copy in lieu of the official record, the Rule allows secondary evidence of
contents when a certified or attested copy cannot be obtained by the exercise
of reasonable diligence. The Rule does, however, have a preference for a
certified or attested copy.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1006 is taken from the Federal Rule without change, and
is similar to the exception to the best evidence rule now found in Para.
143 a(2)(b) of the 1969 Manual. Some difference between
the Rule and the 1969 Manual exists, however, because the Rule permits use
of "a chart, summary, or calculation" while the Manual permitted
only "a summarization." Additionally, the Rule does not include
the 1969 Manual requirement that the summarization be made by a "qualified
person or group of qualified persons," nor does the Rule require, as
the Manual appeared to, that the preparer of the chart, summary, or calculation
testify in order to authenticate the document. The nature of the authentication
required is not clear although some form of authentication is required under
Rule 901(a).
It is possible for a summary that is admissible
under Rule 1006 to include information that would not itself be admissible
if that information is reasonably relied upon by an expert preparing the
summary. See generally Rule 703 and S. Saltzburg & K.
Redden, FEDERAL RULES OF EVIDENCE MANUAL 694 (2d ed. 1977).
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1007 is taken from the Federal Rule without change and
had no express equivalent in the 1969 Manual. The Rule establishes an exception
to Rule 1002 by allowing the contents of a writing, recording or photograph
to be proven by the testimony or deposition of the party against whom offered
or by the party's written admission.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1008 is taken from the Federal Rule without change, and
had no formal equivalent in prior military practice. The Rule specifies three
situations in which members must determine issues which have been conditionally
determined by the military judge. The members have been given this responsibility
in this narrow range of issues because the issues that are involved go to
the very heart of a case and may prove totally dispositive. Perhaps the best
example stems from the civil practice. Should the trial judge in a contract
action determine that an exhibit is in fact the original of a contested contract,
that admissibility decision could determine the ultimate result of trial
if the jury were not given the opportunity to be the final arbiter of the
issue. A similar situation could result in a criminal case, for example,
in which the substance of a contested written confession is determinative
(this would be rare because in most cases the fact that a written confession
was made is unimportant, and the only relevant matter is the content of the
oral statement that was later transcribed) or in a case in which the accused
is charged with communication of a written threat. A decision by the military
judge that a given version is authentic could easily determine the trial.
Rule 1008 would give the member the final decision as to accuracy. Although
Rule 1008 will rarely be relevant to the usual court-martial, it will adequately
protect the accused from having the case against him or her depend upon a
single best evidence determination by the military judge.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
The Federal Rules have been revised extensively to adapt them
to the military criminal legal system. Subdivision (a) of the Federal Rule
specifies the types of courts to which the Federal Rules are applicable,
and Subdivision (b) of the Federal Rule specifies the types of proceedings
to be governed by the Federal Rules. These sections are inapplicable to the
military criminal legal system and consequently were deleted. Similarly,
most of Federal Rule of Evidence 1101(d) is inapplicable to military law
due to the vastly different jurisdictions involved.
Rule 1101(a) specifies that the Military Rules are applicable to
all courts-martial including summary courts-martial, to Article 39(a) proceedings,
limited factfinding proceedings ordered on review, revision proceedings,
and contempt proceedings. This limited application is a direct result of
the limited jurisdiction available to courts-martial.
Rule 1101(b) is taken from subdivision (c) of the Federal Rule and
is similar to prior military law. Unlike the Federal Rules, the Military
Rules contain detailed privileges rather than a general reference to common
law. Compare Federal Rule of Evidence 501 with Military
Rule of Evidence 501-512.
Rule 1101(c) conforms the rules of evidence to military sentencing
procedures as set forth in the 1969 Manual Para. 75 c.
Courts-martial are bifurcated proceedings with sentencing being an adversarial
proceeding. Partial application of the rules of evidence is thus appropriate.
The Rule also recognizes the possibility that other Manual provisions may
now or later affect the application of the rules of evidence.
Rule 1101(d) is taken in concept from subdivision (d) of the Federal
Rule. As the content of the Federal Rule is, however, generally inapplicable
to military law, the equivalents of the Article III proceedings listed in
the Federal Rule have been listed here. They included Article 32 investigative
hearings, the partial analog to grand jury proceedings, proceedings for search
authorizations, and proceedings for pretrial release.
_
1993 Amendment._ Mil. R. Evid. 1101(d) was amended to make the provisions
of Mil. R. Evid. 412 applicable at pretrial investigations.
_
1998 Amendment._ The Rule is amended to increase to 18 months the
time period between changes to the Federal Rules of Evidence and automatic
amendment of the Military Rules of Evidence. This extension allows for timely
submission of changes through the annual review process.
2013 Amendment. The committee recommended revising this rule to align with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Rule 1102 has been substantially revised from the original
Federal Rule which sets forth a procedure by which the Supreme Court promulgates
amendments to the Federal Rules subject to Congressional objection. Although
it is the Committee's intent that the Federal Rules of Evidence apply to
the armed forces to the extent practicable, see Article
36(a), the Federal Rules are often in need of modification to adapt them to
military criminal legal system. Further, some rules may be impracticable.
As Congress may make changes during the initial period following Supreme
Court publication, some period of time after an amendment's effective date
was considered essential for the armed forces to review the final form of
amendments and to propose any necessary modifications to the President. Six
months was considered the minimally appropriate time period.
Amendments to the Federal Rules are not applicable to the armed forces until 180 days
after the effective date of such amendment, unless the President directs
earlier application. In the absence of any Presidential action, however,
an amendment to the Federal Rule of Evidence will be automatically applicable
on the 180th day after its effective date. The President may, however, affirmatively
direct that any such amendment may not apply, in whole or in part, to the
armed forces and that direction shall be binding upon courts-martial.
1998 Amendment: The Rule is amended to increase to 18 months the
time period between changes to the Federal Rules of Evidence and automatic
amendment of the Military Rules of Evidence. This extension allows for the
timely submission of changes through the annual review process.
_
2004 Amendment: See_ Executive Order 13365, dated 3 December
States District Courts, 1 December 2000, creating Rule 902(12) is not adopted.
Federal Rules 301, 302, and 415, were not adopted because they were applicable
only to civil proceedings.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
In choosing the title, Military Rules of Evidence, the Committee
intends that it be clear that military evidentiary law should echo the civilian
federal law to the extent practicable, but should also ensure that the unique
and critical reasons behind the separate military criminal legal system be
adequately served.
2013 Amendment. The committee recommended revising this rule for stylistic reasons and to align it with the Federal Rules of Evidence, but in doing so did not intend to change any result in any ruling on evidence admissibility.
Unless otherwise indicated, the elements, maximum punishments
and sample specifications in paragraphs 3 through 113 are based on paragraphs
157 through 213, paragraph 127 c (Table of Maximum Punishments),
and Appendix 6_c_ of MCM, 1969 (Rev.).
_
1986 Amendment:_ The next to last paragraph of the introduction to
Part IV was added to define the term "elements," as used in Part
Both "proof" and "elements" referred to the statutory
elements of the offense and to any additional aggravating factors prescribed
by the President under Article 56, UCMJ, to increase the maximum permissible
punishment above that allowed for the basic offense. These additional factors
are commonly referred to as "elements," and judicial construction
has approved this usage, as long as these "elements" are pled,
proven, and instructed upon. United States v. Flucas, 23
U.S.C.M.A. 274, 49 C.M.R. 449 (1975); _United States v. Nickaboine
_, 3 U.S.C.M.A. 152, 11 C.M.R. 152 (1953); _United States
Article 77 is based on 18 U.S.C. § 2. _Hearings on H.
R. 2498 Before a Subcomm. of the House Comm. on Armed Services,_ 81st
Cong., 1st Sess. 1240-1244 (1949). The paragraph of subparagraph b(1) reflects
the purpose of 18 U.S.C. § 2 (_see Standefer v. United States
, 447 U.S. 10 (1980)) and Article 77 (see Hearings,
supra_ at 1240).
The common law definitions in the second
paragraph of subparagraph b(1) are based on R. Perkins, _Criminal
Law_ 643-666 (2d ed. 1969); and 1 C. Torcia, _Wharton's
Criminal Law and Procedure_ §§ 29-38 (1978). Several
common law terms such as "aider and abettor" are now used rather
loosely and do not always retain their literal common law meanings. _
See United States v. Burroughs_, 12 M.J. 380, 384 n.4. (C.M.A. 1982); _
United States v. Molina_, 581 F.2d 56, 61 n.8 (2d Cir. 1978). To
eliminate confusion, the explanation avoids the use of such terms where possible. _
See United States v. Burroughs, supra_ at 382 n.3.
Subparagraph (2)(a) is based on paragraph 156 of MCM, 1969 (Rev.).
See 18 U.S.C.A. § 2 Historical and Revision Notes (West
1969). See also United States v. Giles, 300
U.S. 41 (1937); Wharton's, supra at §§ 30, 31,
Subparagraph (2)(b) sets forth the basic formulation of the
requirements for liability as a principal. An act (which may be passive,
as discussed in this subparagraph) and intent are necessary to make one liable
as a principal. _See United States v. Burroughs, supra; United States
States v. Wooten_, 1 U.S.C.M.A. 358, 3 C.M.R. 92 (1952); _
United States v. Jacobs_, 1 U.S.C.M.A. 209, 2 C.M.R. 115 (1952). _
See also_ United States v. Walker, 621 F.2d 163 (5th
Cir. 1980), _ cert. denied_, 450 U.S. 1000 (1981); _
Morei v. United States_, 127 F.2d 827 (6th Cir. 1942); _United
States v. Peoni_, 100 F.2d 401, 402 (2d Cir. 1938). The terms "assist"
and "encourage, advise, and instigate" have been substituted
for "aid" and "abet" respectively, since the latter
terms are technical and may not be clear to the lay reader. See _
Black's Law Dictionary_ 5, 63 (5th ed., 1979). _See also Nye
and Nissen v. United States_, 336 U.S. 613, 620 (1949); _ Wharton's,
_ _ supra_ at 246-47.
The last two sentences
in subparagraph (2)(b) are based on the third paragraph and paragraph 156
of MCM, 1969 (Rev.). See United States v. Ford, 12 U.S.C.M.A.
31, 30 C.M.R. 31 (1960); United States v. McCarthy, 11 U.S.C.M.A.
758, 29 C.M.R. 574 (1960); _ United States v. Lyons_, 11 U.S.C.M.A.
68, 28 C.M.R. 292 (1959).
This subparagraph clarifies, as paragraph 156 of MCM, 1969 (Rev.)
did not, that presence at the scene is neither necessary nor sufficient to
make one a principal. "Aid" and "abet" as used in
18 U.S.C. § 2, and in Article 77, are not used in the narrow common
law sense of an "aider and abettor" who must be present at the
scene to be guilty as such. _United States v. Burroughs, supra; United
States v. Sampol,_ 636 F.2d 621 (D.C. Cir. 1980); _United
States v. Molina, supra; United States v. Carter_, 23 C.M.R. 872
(A.F.B.R. 1957). Cf. Milanovich v. United States, 365 U.S.
551 (1961). _ See also_ Wharton's, _
supra_ at 231. Subparagraph (b) continues the admonition, contained
in the third paragraph of paragraph 156 of MCM, 1969 (Rev.), that presence
at the scene of a crime is not sufficient to make one a principal. _
See United State v. Waluski_, 6 U.S.C.M.A. 724, 21 C.M.R. 46 (1956); _
United States v. Johnson_, 6 U.S.C.M.A. 20, 19 C.M.R. 146 (1955); _
United States v. Guest_, 3 U.S.C.M.A. 147, 11 C.M.R. 147 (1953).
This subparagraph is based on the first paragraph in paragraph 156
of MCM, 1969 (Rev.). See United States v. Jackson, 6 U.S.C.M.A.
193, 19 C.M.R. 319 (1955); Wharton's, supra at § 35.
This paragraph is based on the first two paragraphs in paragraph
156 of MCM, 1969 (Rev.). See United States v. Cowan, 12
C.M.R. 374 (A.B.R. 1953); United States v. Self, 13 C.M.R.
227 (A.B.R. 1953).
Principals independently liable. This
subparagraph is new and is based on Federal decisions. _See Standefer
(9th Cir. 1977); United States v. Frye, 548 F.2d 765 (8th
Cir. 1977).
Withdrawal. This subparagraph is
new and is based on United States v. Williams, 19 U.S.C.M.A.
334, 41 C.M.R. 334 (1970). See also _United States
United States v. Lowell_, 649 F.2d 950 (3d. Cir., 1981); _
United States v. Killian_, 639 F. 2d 206 (5th Cir.), _ cert.
denied_ 451 U.S. 1021 (1981).
This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.).
See also United States v. Tamas, 6 U.S.C.M.A.
502, 20 C.M.R. 218 (1955).
This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.);
United States v. Smith, 5 M.J. 129 (C.M.A. 1978).
This subparagraph is based on Article 78; _United States
Blevins_, 34 C.M.R. 967 (A.F.B.R. 1964).
This subparagraph is based on Article 78 and _United States
Blevins_, 34 C.M.R. 967 (A.F.B.R. 1964).
The subparagraph is based on paragraph 157 of MCM, 1969 (Rev.);
United States v. Marsh, 13 U.S.C.M.A. 252, 32 C.M.R. 252
(1962); and United States v. Humble, 11 U.S.C.M.A. 38, 28
C.M.R. 262 (1959). See also _United States v. McConnico
_, 7 M.J. 302 (C.M.A. 1979).
This subparagraph is based on _United States v. McFarland
_, 8 U.S.C.M.A. 42, 23 C.M.R. 266 (1957).
This paragraph is based on United States v. Marsh, supra. _
See United States v. Foushee_, 13 M.J. 833 (A.C.M.R. 1982). MCM,
1984, APPENDIX 21, Part IV, ARTICLE 79.
This subparagraph and the three subparagraphs are based on paragraph
158 of MCM, 1969 (Rev.). See also _United States
2012 Amendment. In 2010, the Court of Appeals for the Armed Forces examined Article 79 and clarified the legal test for lesser included offenses. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). In Jones, the Court held that the elements test is the proper method of determining lesser included offenses and that an offense under Article 79 is "necessarily included" in the offense charged only if the elements of the lesser offense are a subset of the elements of the greater offense alleged. Under the elements test, one must compare the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is a lesser included offense of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements. The offenses do not have to use identical statutory language; rather, the court uses normal principles of statutory construction to determine the meaning of each element. See Jones, 68 M.J. at 470; United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996). Practitioners should understand the holding in Jones and carefully apply the elements test on a case-by-case basis.
This subparagraph is based on paragraph 158 of MCM, 1969 (Rev.).
See also United States v. Calhoun, 5 U.S.C.M.A.
428, 18 C.M.R. 52 (1955).
This subparagraph is taken from paragraph 158 of MCM, 1969 (Rev.).
2015 Amendment. See analysis in paragraph 3.b.(1) above. Lesser included offenses (LIO) listings were removed from each punitive article in paragraphs 1-113 (except paragraphs 1 and 3), Part IV, and were moved to a new Appendix 12A. The LIO listings are determined based on the elements of the greater offense, but are not binding. Therefore, practitioners should use Appendix 12A only as a guide. To determine if an offense is lesser included, the elements test must be used. United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The offenses are not required to possess identical statutory language; rather, the court uses normal principles of statutory construction to determine the meaning of each element. See id. at 470-73; United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996); Schmuck v. United States, 489 U.S. 705 (1989).
Articles 80-133. See United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011); United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011). Article 134 specifications must contain the "terminal element." See paragraphs 60.b and 60.c.(6)(a) in Part IV. See also United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3).
This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.).
This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.);
United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278
(1957); United States v. Choat, 7 U.S.C.M.A. 187, 21 C.M.R.
313 (1956); United States v. Goff, 5 M.J. 817 (A.C.M.R.
1978); _ United States v. Emerson_, 16 C.M.R. 690 (A.F.B.R.
1954).
This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.);
United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278
(1962). See United States v. Quijada, 588 F.2d 1253 (9th
Cir. 1978).
1995 Amendment: Subparagraph (4)
is new. It recognizes voluntary abandonment as an affirmative defense as
established by the case law. See United States v. Byrd,
24 M.J. 286 (C.M.A. 1987). See also United States v. Schoof,
37 M.J. 96, 103-04 (C.M.A. 1993); United States v. Rios,
33 M.J. 436, 440-41 (C.M.A. 1991); United States v. Miller,
30 M.J. 999 (N.M.C.M.R. 1990); United States v. Walther,
30 M.J. 829, 829-33 (N.M.C.M.R. 1990). The prior subparagraphs (4) - (6)
have been redesignated (5) - (7), respectively.
This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.).
This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.).
_
1986 Amendment:_ In 4_c_(5), subparagraph (e) was
redesignated as subparagraph (f), and a new subparagraph (e) was added to
reflect the offense of attempted espionage as established by the Department
of Defense Authorization Act, 1986, Pub.L. No. 99-145, § 534, 99 Stat.
583, 634-35 (1985) (art. 106a).
This subparagraph is new and is based on _United States v.
Davis_, 16 M.J. 225 (C.M.A. 1983); _United States v. Foster
_, 14 M.J. 246 (C.M.A. 1983).
1991 Amendment: This paragraph was revised
to allow for the imposition of confinement in excess of 20 years for the
offense of attempted murder. There are cases in which the aggravating factors
surrounding commission of an attempted murder are so egregious that a 20
year limitation may be inappropriate. Although life imprisonment may be imposed
by the sentencing authority, mandatory minimum punishment provisions do not
apply in the case of convictions under Article 80.
This subparagraph is based on paragraph 160 of MCM, 1969 (Rev.);
United States v. Kinder, 14 C.M.R. 742 (A.F.B.R. 1953).
The portion of paragraph 160 which provided that acquittal of all alleged
co-conspirators precludes conviction of the accused has been deleted. _
See United States v. Garcia_ 16 M.J. 52 (C.M.A. 1983). _See
also_ United States v. Standefer, 447 U.S. 10 (1980).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.);
United States v. Kidd, 13 U.S.C.M.A. 184, 32 C.M.R. 184
(1962). The last three sentences reflect "Wharton's Rule," 4
C. Torcia, Wharton's Criminal Law, § 731 (1981). _See Iannelli
Yarborough_, 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952); _United
States v. Osthoff_, 8 M.J. 629 (A.C.M.R. 1979); _United States
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.);
United States v. Rhodes, 11 U.S.C.M.A. 735, 29 C.M.R. 551
(1960); United States v. Salisbury, 14 U.S.C.M.A. 171, 33
C.M.R. 383 (1963); United States v. Woodley, 13 M.J. 984
(A.C.M.R. 1982).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.).
See Pinkerton v. United States, 328 U.S. 640 (1946); _
United States v. Salisbury_, 14 U.S.C.M.A. 171, 33 C.M.R. 383 (1963); _
United States v. Woodley_, 13 M.J. 984 (A.C.M.R. 1982).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.);
United States v. Miasel, 8 U.S.C.M.A. 374, 24 C.M.R.184
(1957).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.).
See also United States v. Washington, 1
M.J. 473 (C.M.A. 1976).
This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.);_
United States v. Chapman_, 10 C.M.R. 306 (A.B.R. 1953).
Solicitation under Article 82 has long been recognized as a specific
intent offense. See paragraph 161 of MCM, 1969 (Rev.);
paragraph 161 of MCM, 1951. _See generally United States v. Mitchell
_, 15 M.J. 214 (C.M.A. 1983); United States v. Benton,
7 M.J. 606 (N.C.M.R. 1979). It has been added as an element for clarity.
This paragraph is taken from paragraph 161 of MCM, 1969 (Rev.),
United States v. Wysong, 9 U.S.C.M.A. 248, 26 C.M.R. 29
(1958); United States v. Gentry, 8 U.S.C.M.A. 14, 23 C.M.R.
238 (1957); United States v. Benton, 7 M.J. 606 (N.C.M.R.
1979).
This paragraph is based on paragraph 162 of MCM, 1969 (Rev.); _
United States v. Danley_, 21 U.S.C.M.A. 486, 45 C.M.R. 260 (1972).
See Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981).
The reference to membership in, association with, or activities
in connection with organizations, associations, etc., found in the Table
of Maximum Punishments, paragraph 127 c of MCM, 1969 (Rev.),
for Article 83, was deleted as unnecessary. The maximum punishment for all
fraudulent enlistment cases was then standardized.
This paragraph is taken from paragraph 163 of MCM, 1969 (Rev.).
See also United States v. Hightower, 5
M.J. 717 (A.C.M.R. 1978).
The reference to membership in, with, or activities in connection
with organizations, associations, etc., found in the Table of Maximum Punishments,
paragraph 127_c_ of MCM, 1969 (Rev.), or Article 84, was deleted
as unnecessary. The maximum punishment for all cases was then standardized.
This subparagraph is taken from paragraph 164a of MCM, 1969 (Rev.).
This subparagraph is taken from paragraph 164_a_ of
MCM, 1969 (Rev.). The last sentence is based on _United States v.
Cothern_, 8 U.S.C.M.A. 158, 23 C.M.R. 382 (1957).
force.
This subparagraph is based on paragraph 164_a_ of
MCM, 1969 (Rev.); United States v. Huff, 7 U.S.C.M.A. 247,
22 C.M.R. 37 (1956).
hazardous duty or to shirk important service.
This subparagraph is taken from paragraph 164 a of
MCM, 1969 (Rev.). See also _United States v. Smith
_, 18 U.S.C.M.A. 46, 39 C.M.R. 46 (1968); _United States v.
Deller_, 3 U.S.C.M.A. 409, 12 C.M.R. 165 (1953).
This subparagraph is based on United States v. Bondar,
2 U.S.C.M.A. 357, 8 C.M.R. 157 (1953).
This subparagraph is based on _United States v. Stabler
_, 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954) and rejects the view of
paragraph 164 a of MCM, 1969 (Rev.) that constructive knowledge
would suffice. To avoid confusion, the "constructive knowledge"
language has been replaced with the statement that actual knowledge may be
proved by circumstantial evidence. See United States v. Curtin,
9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958).
This subparagraph is taken from paragraph 164_b_ of
MCM, 1969 (Rev.).
This subparagraph is taken from paragraphs 164_a_ and
165 of MCM, 1969 (Rev.).
As indicated in the Analysis, paragraph 4, attempts, the punishment
for attempted desertion was made uniform. As a result, attempted desertion-
"other cases of"- now conforms with the punishment for "desertion-
other cases of." This amounts to an increase in the maximum punishment
from confinement for one year to either two or three years, depending on
the nature of termination.
This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.).
This subparagraph clarifies that the accused must have in fact known
of the time and place of duty to be guilty of a violation of Article 86(1)
or (2). Cf. United States v. Chandler, 23 U.S.C.M.A. 193,
48 C.M.R. 945 (1974); United States v. Stabler, 4 U.S.C.M.A.
125, 15 C.M.R. 125 (1954). See also _United States
165 of MCM, 1969 (Rev.) dealing with constructive knowledge has been eliminated.
To avoid confusion, this language has been replaced with the statement that
actual knowledge may be proved by circumstantial evidence. _See United
States v. Curtin_, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958).
This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.).
This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.).
This subparagraph is based on United States v. Pounds,
23 U.S.C.M.A. 153, 48 C.M.R. 769 (1974); _United States v. Mitchell
_, 7 U.S.C.M.A. 238, 22 C.M.R. 28 (1956).
This subparagraph is taken from paragraphs 127 c and
165 of MCM, 1969 (Rev.); United States v. Lovell, 7 U.S.C.M.A.
445, 22 C.M.R. 235 (1956).
This subsection is based on paragraph 127_c_(3)
of MCM, 1969 (Rev.).
This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.);
United States v. Dubry, supra; _United States v.
Raymo_, 1 M.J. 31 (C.M.A. 1975); _ United States v. Garner
_, 7 U.S.C.M.A. 578, 23 C.M.R. 42 (1957); _United States v.
Coates_, 2 U.S.C.M.A. 625, 10 C.M.R. 123 (1953); _United States
States v. Petterson_, 14 M.J. 608 (A.F.C.M.R. 1982); _United
States v. Coglin_, 10 M.J. 670 (A.F.C.M.R. 1981). _See also
_ United States v. Zammit, 14 M.J. 554 (N.M.C.M.R.
1982).
This subsection is based on United States v. Francis,
15 M.J. 424 (C.M.A. 1983).
The increased maximum punishment for unauthorized absence for more
than 30 days terminated by apprehension has been added to parallel the effect
of termination of desertion by apprehension and to encourage absent servicemembers
to voluntarily return. A bad-conduct discharge was added to the permissible
maximum punishment for unauthorized absence with intent to avoid maneuvers
of field duty, because with sensitive, high value equipment used in exercises
currently, the effect of such absence is more costly and, because of limited
available training time, seriously disrupts training and combat readiness.
_
1990 Amendment:_ The Note in subsection b(4) was inserted and a conforming
change was made in subsection f(4) to clarify the distinction between "unauthorized
absence from a guard, watch, or duty section" and "unauthorized
absence from guard, watch, or duty section with the intent to abandon it." _
See_ subsections c(4)(c) and c(4)(d).
This subparagraph is based on paragraph 166 of MCM, 1969 (Rev.);
United States v. Kimply, 17 C.M.R. 469 (N.B.R. 1954).
This subparagraph is based on United States v. Graham ,
16 M.J. 460 (C.M.A. 1983); United States v. Johnson, 3 U.S.C.M.A.
174, 11 C.M.R. 174 (1953); United States v. Burke, 6 C.M.R.
588 (A.B.R. 1952); United States v. Jackson, 5 C.M.R. 429
(A.B.R. 1952). See also United States v. Graham,
12 M.J. 1026 (A.C.M.R.), pet granted, 14 M.J. 223 (1982).
This subparagraph is based on _United States v. Clifton
_, 5 C.M.R. 342 (N.B.R. 1952).
This subparagraph is taken from paragraph 166 of MCM, 1969 (Rev.).
This subparagraph is based on _United States v. Chandler
_, 23 U.S.C.M.A. 193, 48 C.M.R. 945 (1974); _United States
paragraph 166 of MCM, 1969 (Rev.). This paragraph rejects the language of
paragraph 166 of MCM, 1969 (Rev.), which has provided for "constructive
knowledge," and adopts the "actual knowledge" requirement
set forth in Chandler.
This subparagraph is taken from paragraph 166 of MCM, 1969 (Rev.).
The maximum punishment for missing movement was increased to make
these punishments more equivalent to aggravated offenses of unauthorized
absences and violations of orders. The major reliance of the armed forces
on rapid deployment and expeditious movement of personnel and equipment to
deter or prevent the escalation of hostilities dictates that these offenses
be viewed more seriously.
This paragraph is taken from paragraph 167 of MCM, 1969 (Rev.).
For a discussion of the history of Article 88, _see United States
This limitation is new and is based on the authority given the
President in Article 56. Paragraph 127_c_ of MCM, 1969 (Rev.), does not mention Article 88. The maximum punishment is based on the maximum
punishment for Article of War 62, which was analogous to Article 88, as
prescribed in paragraph 117_c_ of MCM (Army), 1949, and MCM
(AF), 1949.
2007 Amendment. The analysis for paragraph 12a is amended by replacing the word "Transportation" with the words "Homeland Security" to reflect the reorganization of the United States Coast Guard under the Department of Homeland Security.
This paragraph is taken from Article 1(5); paragraph 168 of MCM,
1969 (Rev.); United States v. Richardson, 7 M.J. 320 (C.M.A.
1979); United States v. Ferenczi, 10 U.S.C.M.A. 3, 27 C.M.R.
77 (1958); United States v. Sorrells, 49 C.M.R. 44 (A.C.M.R.
1974); United States v. Cheeks, 43 C.M.R. 1013 (A.F.C.M.R.
1971); United States v. Montgomery, 11 C.M.R. 308 (A.B.R.
1953).
The maximum punishment was increased from confinement for 6 months
to confinement for 1 year to more accurately reflect the serious nature of
the offense and to distinguish it from disrespect toward warrant officers
under Article 91. See paragraph 15_c._
officer
This subparagraph is based on paragraph 169_a_ of
MCM, 1969 (Rev.) and other authorities as noted below.
"Strikes" is clarified to include any intentional offensive
touching. Other batteries, such as by culpable negligence, are included in
"offers violence." As to "superior commissioned officer," _
see_ Analysis, paragraph 13.
This subparagraph modifies the former discussion of self-defense
since technically, because unlawfulness is not an element expressly, the
officer must be acting illegally or otherwise outside the role of an officer
before self-defense may be in issue. _See United States v. Struckman
_, 20 U.S.C.M.A. 493, 43 C.M.R. 333 (1971).
This subparagraph is based on paragraph 169_b_ of
MCM, 1969 (Rev.) and other authorities as noted below.
See United States v. Keenan, 18 U.S.C.M.A. 108,
39 C.M.R. 108 (1969); United States v. Schultz, 18 U.S.C.M.A.
133, 39 C.M.R. 133 (1969); United States v. Kinder, 14 C.M.R.
742 (A.B.R. 1954).
The Court of Appeals for the Armed Forces held that the lawfulness of an order is a question of law to be determined by the military judge, not the trier of fact. See United States v. New, 55 M.J. 95, 100-01 (C.A.A.F. 2001).
See United States v. Martin, 1 U.S.C.M.A. 674,
5 C.M.R. 102 (1952); United States v. Wilson, 12 U.S.C.M.A.
165, 30 C.M.R. 165 (1961) (restriction on drinking); _United States
United States v. Lenox_, 21 U.S.C.M.A. 314, 45 C.M.R. 88 (1972); _
United States v. Stewart_, 20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971); _
United States v. Wilson_, 19 U.S.C.M.A. 100, 41 C.M.R. 100 (1969); _
United States v. Noyd_, 18 U.S.C.M.A. 483, 40 C.M.R. 195 (1969) (all
dealing with matters that do not excuse the disobedience of an order).
This subparagraph is based on Article 31; _United States
States v. Aycock_, 15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964).
See United States v. Wartsbaugh, 21 U.S.C.M.A.
535, 45 C.M.R. 309 (1972).
See United States v. Bratcher, 18 U.S.C.M.A. 125,
38 C.M.R. 125 (1969).
See United States v. Pettigrew, 19 U.S.C.M.A.
191, 41 C.M.R. 191 (1970); United States v. Oisten, 13 U.S.C.M.A.
656, 33 C.M.R. 188 (1963).
See United States v. Stout, 1 U.S.C.M.A. 639,
5 C.M.R. 67 (1952); United States v. Squire, 47 C.M.R. 214
(N.C.M.R. 1973); United States v. Clowser, 16 C.M.R. 543
(A.F.B.R. 1954).
officer, or petty officer
paragraph 170 of MCM, 1969 (Rev.) and paragraph 170 of MCM, 1951; a review
of the legislative history of Article 91; _United States v. Ransom
, 1 M.J. 1005 (N.C.M.R. 1976); United States v. Balsarini
_, 36 C.M.R. 809 (C.G.B.R. 1965). Paragraph 170 of MCM, 1951 and
MCM, 1969 (Rev.) discussed Article 91 as if Congress had required a superior-subordinate
relationship in Article 91. _See Legal and Legislative Basis, Manual
for Courts-Martial, United States, 1951, at 257. Analysis of Contents, Manual
for Courts-Martial, United States, 1969 (Revised edition)_, DA PAM
27-2, at 28-6. This was in error and all references thereto have
been removed. An amendment to Article 91 was suggested by The Judge Advocate
General of the Army (_see Hearings on S.857 and H.R. 4080 Before a
Subcommittee of the Senate Armed Service Committee_, 81st Cong.,
1st Sess. 274 (1949)) to conform Article 91 to Articles 89 and 90, which
explicitly require superiority, and was later offered, but it was not acted
on. See Congressional Floor Debate on the Uniform Code of
Military Justice (amendment M. p. 170). _See also Hearings Before
a Subcommittee of the House Armed Services Committee on H.R. 2498_,
81st Cong. 1st Sess. 772, 814, 823 (1949). This present interpretation is
consistent with the unambiguous language of Article 91 and its predecessors. _
See_ Articles of War 65 and 1(b) (1920); and paragraph 135, MCM,
1928; paragraph 153, MCM, (Army), 1949 and MCM (AF), 1949. _See also
_ Act of Aug. 10, 1956, Pub.L. No. 84-1028, §49(e), 70A
Stat. 640 (catchlines in U.C.M.J. not relevant to congressional intent).
The
remaining subparagraphs are all taken from paragraph 170 of MCM, 1969 (Rev.)
and the discussion paragraphs of other articles.
Subparagraphs (2) and (7) are based on the aggravating circumstances
that the victim is also superior to the accused. When this factor exists
in a given case, the superiority of the victim must be alleged in the specification.
The penalties for disobedience of noncommissioned and petty officers and
for assault on and disrespect toward superior noncommissioned and petty officers
were increased. In the case of the latter two offenses, this is done in part
to distinguish assault on or disrespect toward a superior noncommissioned
or petty officer from other assaults or disrespectful behavior, in light
of the expansive coverage of the article. Moreover, increasing responsibility
for training, complex and expensive equipment, and leadership in combat is
placed on noncommissioned and petty officers in today's armed forces. The
law should reinforce the respect and obedience which is due them with meaningful
sanctions. The maximum punishment for disrespect toward warrant officers
was adjusted to conform to these changes.
This paragraph is taken from paragraph 171 of MCM, 1969 (Rev.).
The requirement that actual knowledge be an element of an Article 92(3) offense
is based on United States v. Curtin, 9 U.S.C.M.A. 427, 26
C.M.R. 207 (1958).
As to publication under subparagraph c(1)(a), _
see United States v. Tolkach_, 14 M.J. 239 (C.M.A. 1982).
Subparagraph
(1)(e)_ Enforceability_ is new. This subparagraph is based
on United States v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R.
101 (1972); United States v. Hogsett , 8 U.S.C.M.A. 681,
25 C.M.R. 185 (1958). The general order or regulation violated must, when
examined as a whole, demonstrate that it is intended to regulate the conduct
of individual servicemembers, and the direct application of sanctions for
violations of the regulation must be self-evident. _ United States
Nardell, supra_ at 329, 45 C.M.R. at 103. _See United States
Wheeler_, 22 U.S.C.M.A. 149, 46 C.M.R. 149(1973); _United
States v. Scott_, 22 U.S.C.M.A. 25, 46 C.M.R. 24 (1972); _
United States v. Woodrum_, 20 U.S.C.M.A. 529, 43 C.M.R. 369 (1971); _
United States v. Brooks_, 20 U.S.C.M.A. 42, 42 C.M.R. 220 (1970); _
United States v. Baker_, 18 U.S.C.M.A. 504, 40 C.M.R. 216 (1969); _
United States v. Tassos_, 18 U.S.C.M.A. 12, 39 C.M.R. 12 (1968); _
United States v. Farley_, 11 U.S.C.M.A. 730, 29 C.M.R. 546 (1960);
DiChiara, _Article 92; Judicial Guidelines for Identifying Punitive
Orders and Regulations_, 17 A.F.L. Rev. Summer 1975 at 61.
The maximum punishment for willful dereliction of duty was increased
from 3 months to 6 months confinement and to include a bad-conduct discharge
because such offenses involve a flaunting of authority and are more closely
analogous to disobedience offenses.
_February 1986 Amendment:
_ The rule was revised to add constructive knowledge as an alternative
to the actual knowledge requirement in paragraph
(b)(3)(b) and the related explanation in subparagraph c(3)(b). In reviewing
these provisions, it was concluded that the reliance of the drafters of the
1984 revision on the_ Curtin_ case was misplaced because the
portion of that case dealt with failure to obey under Article 92(2), not
dereliction under Article 92(3). As revised, the elements and the explanation
add an objective standard appropriate for military personnel.
2015 Amendment: Subsection b(3) was amended to increase the punishment for dereliction of duty when such dereliction results in grievous bodily harm or death. Subsection b(3)(d) incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones. The DLPB is a Federal Advisory Committee established to provide independent advice to the Secretary of Defense. The DLPB subcommittee primarily focused on civilian casualties in a deployed environment, and the DLPB found that the maximum punishment for dereliction of duty was not commensurate with the potential consequences of dereliction resulting in civilian casualties. The DLPB also found that the available punishment did not make alternative dispositions to court-martial a practical option because there was little incentive for an accused to accept these alternatives. This rule expands on the recommendation of the DLPB and includes elevated maximum punishment for dereliction of duty that results in death or grievous bodily harm suffered by any person.
This paragraph is based on paragraph 172 of MCM, 1969 (Rev.); _
United States v. Dickey_, 20 C.M.R. 486 (A.B.R. 1956). The phrase
"subject to the Code or not" was added to reflect the fact that
the victim could be someone other than a member of the military. The example
of sexual harassment was added because some forms of such conduct are nonphysical
maltreatment.
This paragraph is taken from paragraph 173 of MCM, 1969 (Rev.).
Subparagraph (1) is also based on United States v. Woolbright,
12 U.S.C.M.A. 450, 31 C.M.R. 36 (1961);
United States v. Duggan,
4 U.S.C.M.A. 396, 15 C.M.R. 396 (1954). The reference in paragraph 173 of
MCM, 1969 (Rev.) to charging failure to report an impending mutiny or sedition
under Article 134 has been deleted in subparagraph (4). This is because such
an offense was not listed in the Table of Maximum Punishments or elsewhere
under Article 134 in that Manual. Article of War 67 included this offense,
but Article 94 excludes it. The drafters of paragraph 173 of MCM, 1951 noted
the change. To fill the gap they referred to Article 134. Instead, they should
have referred to Article 92(3) because dereliction is the gravamen of the
offense.
The elements listed for breaking arrest and escape from custody
or confinement have been modified. Paragraph 174 b, c, and
d of MCM, 1969 (Rev.) provided that the accused be "duly"
placed in arrest, custody, or confinement. "Duly" was deleted
from the elements of these offenses. Instead, the elements specify that the
restraint be imposed by one with authority to impose it. This was done to
clarify the meaning of the word "duly" and the burden of going
forward on the issues of authority to order restraint and the legal basis
for the decision to order restraint.
"Duly" means
"in due or proper form or manner, according to legal requirements." _
Black's Law Dictionary_ 450 (5th ed. 1979). _See also United
States v. Carson_, 15 U.S.C.M.A. 407, 35 C.M.R. 379 (1965). Thus
the term includes a requirement that restraint be imposed by one with authority
to do so, and a requirement that such authority be exercised lawfully. Until
1969, the Manual also provided that arrest, confinement, or custody which
is "officially imposed is presumed to be legal." Paragraph 174
of MCM, 1951. See also paragraph 157 of MCM, (Army), 1949,
MCM (AF), 1949; paragraph 139 of MCM, 1928. In practical effect, therefore,
the prosecution had only to present some evidence of the authority of the
official imposing restraint to meet its burden of proof, unless the presumption
of legality was rebutted by some evidence. _See United States v. Delagado
_, 12 C.M.R. 651 (C.G.B.R. 1953). _Cf. United States v. Clansey
_, 7 U.S.C.M.A. 230, 22 C.M.R. 20 (1956); _United States v.
Gray_, 6 U.S.C.M.A. 615, 20 C.M.R. 331 (1956).
The drafters
of MCM, 1969 (Rev.), deleted the presumption of legality. In their view the
holding in United States v. Carson, supra, that this is
a question of law to be decided by the military judge made such a presumption
meaningless. _Analysis of Contents, Manual for Courts-Martial, United
States, 1969 (Revised edition)_, DA PAM 27-2, at 28-8.
The drafters considered deleting "duly" as an element but did
not because the prosecution must show that restraint was "duly"
imposed. Id. The result left the implication that the prosecution
must produce evidence of both the authority of the person imposing or ordering
restraint, and the legality of that official's decision in every case, whether
or not the latter is contested. Given the dual meaning of the word "duly"
and the reason for deleting the presumption of legality, it is unclear whether
the drafters intended this result. Cf. United States v. Stinson,
43 C.M.R. 595 (A.C.M.R. 1970).
"Duly" is replaced
with the requirement that the person ordering restraint be proved to have
authority to do so. This clarifies that proof of arrest, custody, or confinement
ordered by a person with authority to do so is sufficient without proof of
the underlying basis for the restraint (e.g., probable cause, legally sufficient
nonjudicial punishment, risk of flight), unless the latter is put in issue
by the defense. This is consistent with Article 95 which on its face does
not require the restraint to be lawful (compare Article
95 with Articles 90-92 which prohibit violations of
"lawful orders"-which orders are presumed
lawful in the absence of evidence to the contrary. _United States
is also supported by judicial decisions. _See United States v. Wilson
, 6 M.J. 214 (C.M.A. 1979); United States v. Clansey, supra;
United States v. Yerger_, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952); _
United States v. Delgado, supra. Cf. United States v. Mackie_, 16
U.S.C.M.A. 14, 36 C.M.R. 170 (1966); _ United States v. Gray, supra.
But see United States v. Rozier_, 1 M.J. 469 (C.M.A. 1976). This
construction also avoids unnecessary litigation of a collateral issue and
eliminates the necessity for the introduction of uncharged misconduct, except
when the door is opened by the defense. _Cf. United States v. Yerger,
supra; United States v. Mackie, supra._
_1991 Amendment:
_ Subparagraph b(4) was amended by adding an aggravating element
of post-trial confinement to invoke increased punishment for escapes from
post-trial confinement.
This subparagraph is taken from Article 7.
This subparagraph is taken from paragraph 174_a_ of
MCM, 1969 (Rev.).
This subparagraph is taken from paragraph 174_a_ of
MCM, 1969 (Rev.). See also United States v. Nelson, 17
U.S.C.M.A. 620, 38 C.M.R. 418 (1968).
The first sentence of this subparagraph is taken from paragraph
174_a_ of MCM, 1969 (Rev.). Although such a rule is not without
criticism, see United States v. Lewis, 7 M.J. 348 (C.M.A.
1979); United States v. Moore, 483 F.2d 1361, 1364 (9th
Cir.1973), it has long been recognized in military and civilian courts. _
John Bad Elk v. United States_, 177 U.S. 529 (1900); paragraph 174_a_ of MCM, 1951. Cf. paragraph 157 of MCM (Army),
1949; MCM (AF), 1949; paragraph 139 of MCM, 1928; W. Winthrop,_ Military
Law and Precedents_ 122 (2d ed. 1920 reprint). (Before 1951 resisting
apprehension was not specifically prohibited by the Articles of War. Earlier
references are to breaking arrest or escape from confinement.)
The
second sentence has been added to make clear that the issue of legality of
an apprehension (e.g., whether based on probable cause or otherwise in accordance
with requirements for legal sufficiency; see R.C.M. 302(e))
is not in issue until raised by the defense. _United States v. Wilson
, and United States v. Clansey_, both _supra.
Cf. United States v. Smith_, 21 U.S.C.M.A. 231, 45 C.M.R. 5 (1972). _
See also_ Analysis, paragraph 19_b_. The presumption
is a burden assigning device; it has no evidentiary weight once the issue
is raised. Because the issue of legality is not an element, and because the
prosecution bears the burden of establishing legality when the issue is raised,
the problems of Mullaney v. Wilbur, 421 U.S. 684 (1975)
and Turner v. United States, 396 U.S. 398 (1970) are not
encountered. Cf. Patterson v. New York, 432 U.S. 197 (1977).
The
third sentence is based on United States v. Carson, supra.
This subparagraph has been added for clarity.
This subparagraph is based on paragraph 174_b_ of
MCM, 1969 (Rev.). See also Analysis, paragraph 19_b_.
This subparagraph is based on paragraph 174 b of
MCM, 1969 (Rev.).
The first sentence in this subparagraph is based on paragraph 174_b_ of MCM, 1969 (Rev.). The second sentence has been added to clarify
that legality of an arrest (e.g., whether based on probable cause or based
on legally sufficient nonjudicial punishment or court-martial sentence) is
not in issue until raised by the defense. See Analysis, paragraphs
19_b_ and 19_c_(1)(e). The third sentence
is based on United States v. Carson, supra.
This subparagraph is taken from paragraph 174_d_ of
MCM, 1969 (Rev.). As to the distinction between escape from custody and escape
from confinement, see United States v. Ellsey, 16 U.S.C.M.A.
455, 37 C.M.R. 75 (1966). But see United States v. Felty,
12 M.J. 438 (C.M.A. 1982).
This cross-reference is based on paragraph 174_c_ of
MCM, 1969 (rev.).
The first sentence in this subparagraph is based on paragraph 174_b_ of MCM, 1969 (Rev.). The second sentence has been added to clarify
that legality of custody (e.g., whether based on probable cause) is not in
issue until raised by the defense. See Analysis, paragraphs
19_b_ and 19_c_(1)(e). The
third sentence is based on United States v. Carson, supra.
See Article 9(a). See also Analysis,
R.C.M. 305; R.C.M. 1101; and paragraph 5_c_, Part V.
_
1991 Amendment:_ Subparagraph c(4)(a) was amended to specify that
escape from post-trial confinement is subject to increased punishment.
This subparagraph is based on paragraph 174_c_ of
MCM, 1969 (Rev.). See also United States v. Maslanich, 13
M.J. 611 (A.F.C.M.R. 1982).
This subparagraph is based on United States v. Silk,
37 C.M.R. 523 (A.B.r. 1966); United States v. Sines, 34
C.M.R. 716 (N.B.R. 1964).
This subparagraph is based on 174_a_ of MCM, 1969
(Rev.). The second sentence has been added to clarify that legality of confinement
(e.g., whether based on probable cause or otherwise in accordance with requirements
for legal sufficiency) is not in issue until raised by the defense. _
See_ Analysis, paragraphs 19_b_ and 19_c_(1)(e). The third sentence is based on _United States v.
Carson, supra._
1991 Amendment: Subparagraphs _
e_ and f were amended to provide increased punishment
for escape from post-trial confinement. The increased punishment reflects
the seriousness of the offense and is consistent with other federal law. _
See_ 18 U.S.C. 751(a).
1998 Amendment: Subparagraphs _
a, b, c,_ and f were amended to implement the amendment
to 10 U.S.C. §895 (Article 95, UCMJ) contained in section 1112 of the
National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106,
110 Stat. 186, 461 (1996). The amendment proscribes fleeing from apprehension
without regard to whether the accused otherwise resisted apprehension. The
amendment responds to the Court of Appeals for the Armed Forces decisions
in United States v. Harris, 29 M.J. 169 (C.M.A. 1989), and
United States v. Burgess, 32 M.J. 446 (C.M.A. 1991). In
both cases, the court held that resisting apprehension does not include fleeing
from apprehension, contrary to the then-existing explanation in Part IV,
paragraph 19c.(1)(c), MCM, of the nature of the resistance required for resisting
apprehension. The 1951 and 1969 Manuals for Courts-Martial also explained
that flight could constitute resisting apprehension under Article 95, an
interpretation affirmed in the only early military case on point,_
United States v. Mercer_, 11 C.M.R. 812 (A.F.B.R. 1953). Flight
from apprehension should be expressly deterred and punished under military
law. Military personnel are specially trained and routinely expected to
submit to lawful authority. Rather than being a merely incidental or reflexive
action, flight from apprehension in the context of the armed forces may have
a distinct and cognizable impact on military discipline.
This paragraph is based on paragraph 176 of MCM, 1969 (Rev.); _
United States v. Johnson_, 3 M.J. 361 (C.M.A. 1977). The explanation
of the scope of Article 97 is new and results from Johnson and
the legislative history of Article 97 cited therein. Id. at
363 n.6.
This paragraph is taken from paragraph 177 of MCM, 1969 (Rev.).
The maximum punishment for intentional failure to enforce or comply
with provisions of the Code has been increased from that specified in paragraph
127_c_ of MCM, 1969 (Rev.) to more accurately reflect the
seriousness of this offense. See generally 18 U.S.C. §
1505, the second paragraph of which prohibits acts analogous to those prohibited
in Article 98(2).
This paragraph is based on paragraphs 178 and 183_a_
of MCM, 1969 (Rev.); United States v. Sperland, 1 U.S.C.M.A.
661, 5 C.M.R. 89 (1952) (discussion of "before or in the presence of
the enemy"); United States v. Parker, 3 U.S.C.M.A.
541, 13 C.M.R. 97 (1953) (discussion of "running away"); _
United States v. Monday_, 36 C.M.R. 711 (A.B.R. 1966), _pet.
denied_, 16 U.S.C.M.A. 659, 37 C.M.R. 471 (1966) (discussion of
"the enemy") (see also United States v. Anderson,
17 U.S.C.M.A. 588, 38 C.M.R. 386 (1968)); _United States v. Yarborough
, 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952) (discussion of "fear");
United States v. Presley_, 18 U.S.C.M.A. 474, 40 C.M.R. 186 (1969); _
United States v. King_, 5 U.S.C.M.A. 3, 17 C.M.R. 2 (1954) (discussion
of illness as a defense to a charge of cowardice); _United States
U.S.C.M.A. 192, 36 C.M.R. 348 (1966) (discussion of "false alarm"); _
United States v. Payne_, 40 C.M.R. 516 (A.B.R. 1969); _pet.
denied_, 18 U.S.C.M.R. 327 (1969) (discussion of failure to do utmost).
This paragraph is taken from paragraph 179 of MCM, 1969 (Rev.).
This paragraph is based on paragraph 180 of MCM, 1969 (Rev.).
This paragraph is taken from paragraph 181 of MCM, 1969 (Rev.).
Note that a "time of war" need not exist for the commission of
this offense. _See Hearings on H.R. 2498 Before a Subcomm. of the
House Comm. on Armed Services_, 81st Cong., 1st Sess. 1229 (1949)._
See also United States v. Anderson_, 17 U.S.C.M.A. 588, 38 C.M.R.
386 (1968) (concerning a state of belligerency short of formal war).
This paragraph is taken from paragraph 182 of MCM, 1969 (Rev.).
The maximum punishments based on value have been revised. Instead
of three levels ($50 or less, $50 to $100, and over $100), only two are used.
This is simpler and conforms more closely to the division between felony
and misdemeanor penalties contingent on value in property offenses in civilian
jurisdictions.
2002 Amendment: The monetary amount
affecting the maximum punishments has been revised from $100 to $500 to account
for inflation. The last change was in 1969 raising the amount to $100. The
value has also been readjusted to realign it more closely with the division
between felony and misdemeanor penalties in civilian jurisdictions. _
See generally_ American Law Institute, Model Penal Code and Commentaries
Sec. 223.1 (1980) (suggesting $500 as the value). The amendment also adds
the phrase "or any firearm or explosive" as an additional criterion.
This is because, regardless of the intrinsic value of such items, the threat
to the community is substantial when such items are wrongfully bought, sold,
traded, dealt in or disposed.
This paragraph is based on paragraph 183 of MCM, 1969 (Rev.). _
See also United States v. Olson_, 7 U.S.C.M.A. 460, 22 C.M.R. 250
(1957); United States v. Batchelor, 7 U.S.C.M.A. 354, 22
C.M.R. 144 (1956); United States v. Dickenson, 6 U.S.C.M.A.
438, 20 C.M.R. 154 (1955).
This paragraph is based on paragraph 184 of MCM, 1969 (Rev.). _
See also United States v. Batchelor_, 7 U.S.C.M.A. 354, 22 C.M.R.
144 (1956); United States v. Dickenson, 7 U.S.C.M.A. 438,
20 C.M.R. 154 (1955).
This paragraph is taken from paragraph 185 of MCM, 1969 (Rev.).
See generally W. Winthrop,_ Military Law and Precedents
_ 766-771 (2d ed. 1920 reprint). Subparagraphs (4) and (6)(b)
are also based on Annex to Hague Convention No. IV, Respecting the law and
customs of war on land, Oct. 18, 1907, Arts. XXIX and XXXI, 36 Stat. 2303,
T.S. No. 539, at 33.
Article 106a was added to the UCMJ in the Department of Defense
Authorization Act, 1986, Pub.L. No. 99-145, § 534, 99 Stat. 583,
634-35 (1985).
The explanation is based upon H.R. Rep. No. 235, 99th Cong., 1st
Sess. (1985), containing the statement of conferees with respect to the
legislation establishing Article 106a. See also 1985 U.S.
Code Cong. & Ad. News 472, 577-79.
_1995 Amendment:
_ This subparagraph was amended to clarify that the intent element
of espionage is not satisfied merely by proving that the accused acted without
lawful authority. Article 106a, Uniform Code of Military Justice. The accused
must have acted in bad faith. United States v. Richardson,
33 M.J. 127 (C.M.A. 1991); see Gorin v. United States, 312
U.S. 19, 21 n.1 (1941).
This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.);
United States v. Cummings, 3 M.J. 246 (C.M.A. 1977). _
See also United States v. Collier_, 23 U.S.C.M.A. 713, 48 C.M.R.
789 (1974) (regarding voluntary false statement to military police).
The first sentence of this subparagraph is based on _United
States v. Cummings, supra._ The second sentence is based on _
United States v. Ragins_, 11 M.J. 42 (C.M.A. 1981).
This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.);
United States v. Hutchins, 5 U.S.C.M.A. 422, 18 C.M.R. 46
(1955).
This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.).
This subparagraph is based on the language of Article 107 and on
United States v. Acosta, 19 U.S.C.M.A. 341, 41 C.M.R. 341
(1970), and clarifies- as paragraph 186 of MCM, 1969 (Rev.), did not-
that actual knowledge of the falsity is necessary. _See also United
States v. DeWayne_, 7 M.J. 755 (A.C.M.R. 1979); _United States
Hughes_, 19 C.M.R. 631 (A.F.B.R. 1955).
_2002 Amendment:
_Subparagraph c(6), "Statements made during an interrogation,"
was removed in light of questions raised by the Court of Appeals for the
Armed Forces in United States v. Solis, 46 M.J. 31, 35 (C.A.A.F.
1997). In _ Solis_, the court said subparagraph c(6) could
be viewed as serving at least three different purposes. It could be (1) an
expansive description of dicta with no intent to limit prosecutions; (2)
protection for an accused against overcharging; or (3) guidance for the conduct
of investigations. Subparagraph c(6) was never intended to establish either
procedural rights for an accused or internal guidelines to regulate government
conduct. Subparagraph (c)(6) was based upon _United States v. Aronson
_, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957); _United States v.
Washington_, 9 U.S.C.M.A. 131, 25 C.M.R. 393 (1958) and _
United States v. Davenport_, 9 M.J. 364 (C.M.A. 1980) and was intended
merely to describe the rule developed in those cases that a false statement
to a law enforcement agent, when made by a servicemember without an independent
duty to speak, was not "official" and therefore not within the
purview of Article 107. The subparagraph is removed because the position
of the Court of Military Appeals in the three decisions noted above was abandoned
in _ United States v. Jackson_, 26 M.J. 377 (C.M.A. 1988)
and the deleted paragraph no longer accurately describes the current state
of the law.
The maximum penalty for all offenses under Article 107 has been
increased to include confinement for 5 years to correspond to 18 U.S.C. §
1001, the Federal civilian counterpart of Article 107. _See United
States v. DeAngelo_, 15 U.S.C.M.A. 423, 35 C.M.R. 395 (1965).
loss, damage, destruction, or wrongful disposition
This paragraph is based on paragraph 187 of MCM, 1969 (Rev.). _
See also United States v. Bernacki_, 13 U.S.C.M.A. 641, 33 C.M.R.
173 (1963); United States v. Harvey, 6 M.J. 545 (N.C.M.R.
1978); United States v. Geisler, 37 C.M.R. 530 (A.B.R. 1966).
The last sentence in subparagraph (c)(1) is based on_ United States
1986 Amendment: Subparagraph c(1) was amended to correct
an ambiguity in the definition of military property. The previous language
"military department" is specifically defined in 10 U.S.C. 101(7)
as consisting of the Department of the Army, Navy and Air Force. Article
1(8), UCMJ, however, defines "military" when used in the Code
as referring to all the armed forces. Use of the term "military department"
inadvertently excluded property owned or used by the Coast Guard. The subparagraph
has been changed to return to the state of the law prior to 1984, as including
the property of all the armed forces. _See United States v. Geisler
_, 37 C.M.R. 530 (A.B.R. 1966); _United States v. Schelin
_, 15 M.J. 218, 220 n.6 (C.M.A. 1983).
See United States v. Mizner, 49 C.M.R. 26 (A.C.M.R.
1974).
1986 Amendment: Subparagraph d(1) was amended to include a lesser included offense previously
omitted. See United States v. Rivers, 3 C.M.R. 564 (A.F.B.R.
amended to include lesser included offenses recognizing that destruction
and damage of property which is not proved to be military may be a violation
of Article 109. See United States v. Suthers, 22 C.M.R.
787 (A.F.B.R. 1956).
The maximum punishments have been revised. Instead of three levels
($50 or less, $50 to $100, and over $100) only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in civilian jurisdictions.
The punishments are based on 18 U.S.C. § 1361. The maximum punishment
for selling or wrongfully disposing of a firearm or explosive and for willfully
damaging, destroying, or losing such property or suffering it to be lost,
damaged, destroyed, sold, or wrongfully disposed of includes 10 years confinement
regardless of the value of the item. The harm to the military in such cases
is not simply the intrinsic value of the item. Because of their nature, special
accountability and protective measures are employed to protect firearms or
explosives against loss, damage, destruction, sale, and wrongful disposition.
Such property may be a target of theft or other offenses without regard to
its value. Therefore, to protect the Government's special interest in such
property, and the community against improper disposition, such property is
treated the same as property of a higher value.
2002 Amendment: The monetary amount affecting the maximum punishments
has been revised from $100 to $500 to account for inflation. The last change
was in 1969 raising the amount to $100. The value has also been readjusted
to realign it more closely with the division between felony and misdemeanor
penalties in civilian jurisdictions. See generally American
Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting
$500 as the value). Although the monetary amount affecting punishment in
18 U.S.C. § 1361, Government property or contracts, and 18 U.S.C. § 641, Public money, property or records, was increased from $100 to $1000
pursuant to section 606 of the Economic Espionage Act of 1996, P. L. No.
104-294, 110 Stat. 3488 (1996), a value of $500 was chosen to maintain deterrence,
simplicity, and uniformity for the Manual's property offenses.
States-waste, spoilage, or destruction
This paragraph is based on paragraph 188 of MCM, 1969 (Rev.). _
See also United States v. Bernacki_, 13 U.S.C.M.A. 641, 33 C.M.R.
173 (1963).
The maximum punishments have been revised. Instead of three levels
($50 or less, $50 to $100, and over $100), only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in civilian jurisdictions.
2002 Amendment: The monetary amount affecting the maximum punishments
has been revised from $100 to $500 to account for inflation. The last change
was in 1969 raising the amount to $100. The value has also been readjusted
to realign it more closely with the division between felony and misdemeanor
penalties in civilian jurisdictions. See generally American
Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting
$500 as the value).
See United States v. Collins, 16 U.S.C.M.A. 167,
36 C.M.R. 323 (1966), concerning charging damage to different articles belonging
to different owners, which occurred during a single transaction, as one offense.
This paragraph is based on paragraph 189 of MCM, 1969 (Rev.). _
See also United States v. Adams_, 42 C.M.R. 911 (N.C.M.R. 1970),
pet. denied, 20 U.S.C.M.A. 628 (1970); _United States
MacLane_, 32 C.M.R. 732 (C.G.B.R. 1962); _United States
Day_, 23 C.M.R. 651 (N.B.R. 1957).
2002 Amendment: Changes to this Article are contained
in section 581 of the National Defense Authorization Act for Fiscal Year
2002, P.L. 107-107, 115 Stat. 1012 (2001).
Additionally, this change defines the offense in terms of what alcohol concentration level is prohibited by operation of State law or as otherwise provided. Also, the text reflects an amendment to section 911 of title 10, United States Code, in section 552 of the National Defense Authorization Act for Fiscal Year 2004 to restore the blood alcohol concentration limit that defines the offense of drunken operation of a vehicle, aircraft, or vessel in the United States to the limit that existed before the passage of section 581 of the National Defense Authorization Act for Fiscal Year 2002. Before passage of that Act, an alcohol concentration level in the person's blood or breath of 0.10 grams "or more" of alcohol per 100 milliliters of blood (or 210 liters of breath) was a punishable offense. By relying on the term "blood alcohol content limit," as defined to be the maximum permissible concentration to operate a vehicle, aircraft, or vessel, section 581 resulted in eliminating the level of 0.10 grams as a prohibited level of alcohol concentration and raised the definition of the offense to some level in excess of 0.10 grams.
2007 Amendment: Changes to this Article are contained in section 552 of the National Defense Authorization Act for Fiscal Year 2004, P.L. 108 136, 117 Stat.1392 (2003), and supersede any changes to Paragraph 35 by Executive Order 13387 (14 October 2005).
The aggravating element of injury is listed as suggested by sample
specification number 75 and the Table of Maximum Punishments at 25-13
and A6-13 of MCM, 1969 (Rev.). The wording leaves it possible to plead
and prove that the_ accused_ was injured as a result of the
accused's drunken driving and so make available the higher maximum punishment.
This result recognizes the interest of society in the accused's resulting
unavailability or impairment for duty and the costs of medical treatment.
Paragraph 190 (Proof, (c)) of MCM, 1969 (Rev.) used "victim,"
the ambiguity of which might have implied that injury to the accused would
not aggravate the maximum punishment. _Analysis of Contents, Manual
for Courts-Martial, United States, 1969 (Revised Edition)_ DA PAM
27-2, at 28-10, does not suggest that the drafters intended such
a result.
2007 Amendment: Paragraph b(2)(c) is amended for consistency with the changes in statutory text contained in section 552 of the National Defense Authorization Act for Fiscal Year 2004, P.L. 108 136, 117 Stat. 1392 (2003), and supersedes any changes to Paragraph 35 by Executive Order 13387 (14 October 2005).
This paragraph is taken from paragraph 190 of MCM, 1969 (Rev.).
See also United States v. Bull, 3 U.S.C.M.A. 635, 14 C.M.R.
53 (1954) (drunkenness); United States v. Eagleson, 3 U.S.C.M.A.
685, 14 C.M.R. 103 (1954) (reckless); United States v. Grossman,
2 U.S.C.M.A. 406, 9 C.M.R. 36 (1953) (separate offenses).
1991 Amendment: The order of the last and penultimate phrases was
reversed to clarify that "so as to cause the particular vehicle to
move" modifies only "the manipulation of its controls"
and not the "setting of its motive power in action." This change
makes clear that merely starting the engine, without movement of the vehicle,
is included within the definition of "operating."
The maximum authorized confinement for drunk driving resulting in
injury was increased from 1 year to 18 months. This increase reflects the
same concern for the seriousness of the misconduct as that which has, by
current reports, motivated almost half the states to provide more stringent
responses.
1986 Amendment: Subparagraphs b(2),
c(3), and f were amended to implement the amendment to Article 111 contained
in the Anti-Drug Abuse Act of 1986, tit. III, § 3055, Pub.L.
No. 99-570, enacted 27 October 1986, proscribing driving while impaired
by a substance described in Article 112a(b). This amendment codifies prior
interpretation of the scope of Article 111, as previously implemented in
paragraph 35c(3).
1995 Amendment: This paragraph
was amended pursuant to the changes to Article 111 included in the National
Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484,
106 Stat. 2315, 2506 (1992). New subparagraphs c(2) and (3) were added
to include vessels and aircraft, respectively. Paragraph 35 was also amended
to make punishable actual physical control of a vehicle, aircraft, or vessel
while drunk or impaired, or in a reckless fashion, or while one's blood or
breath alcohol concentration is in violation of the described per se standard.
A new subparagraph c(5) was added to define the concept of actual physical
control. This change allows drunk or impaired individuals who demonstrate
the capability and power to operate a vehicle, aircraft, or vessel to be
apprehended if in the vehicle, aircraft, or vessel, but not actually operating
it at the time.
The amendment also clarifies that culpability
extends to the person operating or exercising actual physical control through
the agency of another (e.g., the captain of a ship giving
orders to a helmsman). The amendment also provides a blood/alcohol blood/breath
concentration of 0.10 or greater as a per se standard for illegal intoxication.
The change will not, however, preclude prosecution where no chemical test
is taken or even where the results of the chemical tests are below the statutory
limits, where other evidence of intoxication is available. _See United
States v. Gholson_, 319 F. Supp. 499 (E.D. Va. 1970).
A
new paragraph c(9) was added to clarify that in order to show that the accused
caused personal injury, the government must prove proximate causation and
not merely cause-in-fact. _Accord United States v. Lingenfelter
_, 30 M.J. 302 (C.M.A. 1990). The definition of "proximate
cause" is based on_ United States v. Romero_, 1 M.J.
227, 230 (C.M.A. 1975). Previous subparagraph c(2) is renumbered c(4).
Previous subparagraphs c(3)-c(5) are renumbered c(6)-c(8), respectively,
and previous subparagraph c(6) is renumbered c(10).
Subparagraphs
d(1) and (2) are redesignated d(2)(b) and d(2)(c). The new d(2)(a) adds
Article 110 (improper hazarding of a vessel) as a lesser included offense
of drunken operation or actual physical control of a vessel.
The
new d(1) adds Article 110 (improper hazarding of a vessel) as a lesser included
offense of reckless or wanton or impaired operation or physical control of
a vessel.
This paragraph is based on paragraph 191 of MCM, 1969 (Rev.). The
discussion of defenses is based on United States v. Gossett,
14 U.S.C.M.A. 305, 34 C.M.R. 85 (1963); _United States v. Burroughs
_, 37 C.M.R. 775 (C.G.B.R. 1966).
substances
Introduction. This paragraph is based on
Article 112a (see Military Justice Act of 1983, Pub.L. No.
98-209, § 8, 97 Stat. 1393 (1983)), and on paragraphs 127
and 213, and Appendix 6c of MCM, 1969 (Rev.), as amended by Exec. Order No.
12383 (Sep. 23, 1982). Paragraphs 127 and 213 and Appendix 6c of MCM, 1969
(Rev.) are consistent with Article 112a. See S.Rep. No.
53, 98th Cong., 1st Sess. 29 (1983).
The only changes made by
Article 112a in the former Manual paragraphs are: elimination of the third
element under Article 134; substitution of barbituric acid for phenobarbital
and secobarbital (these are still specifically listed in subparagraph c),
and inclusion of importation and exportation of controlled substances. The
definition of "customs territory of the United States" is based
on 21 U.S.C. § 951(a)(2) and on general headnote 2 to the Tariff
Schedules of the United States. See 21 U.S.C. § 1202. _
See also_ H.R.Rep. No. 91-1444, 91st Cong., 2d Sess. 74 (1970).
The maximum punishments for importing or exporting a controlled substance
are based generally on 21 U.S.C. § 960. See also 21
U.S.C. §§ 951-53.
The definition of "missile
launch facility" has been added to clarify that the term includes not
only the actual situs of the missile, but those places directly integral
to the launch of the missile.
The following is an analysis of
Exec. Order No. 12383 (Sep. 23,1982):
Section 1 (now subparagraph
This amendment of the Table of Maximum Punishments provides a completely
revised system of punishments for contraband drug offenses under Article
used as a benchmark for punishments in this paragraph. Thus, the maximum
penalty for distribution or possession with intent to distribute certain
Schedule I substances under 21 U.S.C. § 841-15 years
imprisonment-is the same as the highest maximum punishment under paragraph 127_c_ (except when the escalator clause is triggered, see analysis
of section 2_ infra._)
Within the range under
the 15 year maximum, the penalties under paragraph 127_c_ are
generally somewhat more severe than those under 21 U.S.C. §§ 841
and 844. This is because in the military any drug offense
is serious because of high potential for adversely affecting readiness and
mission performance. See generally Schlesinger v. Councilman,
420 U.S. 738, 760 n.34 (1975); United States v. Trottier,
9 M.J. 337 (C.M.A. 1980). The availability of contraband drugs, especially
in some overseas locations, the ambivalence toward and even acceptance of
drug usage in some segments of society, especially among young people, and
the insidious nature of drug offenses all require that deterrence play a
substantial part in the effort to prevent drug abuse by servicemembers.
The
following sentence enhancement provisions in the United States Code were
not adopted: (1) the recidivism provisions in 21 U.S.C. §§ 841(b),
844(a), and 845(b), which either double or triple the otherwise prescribed
maximum penalty; and (2) the provision in 21 U.S.C. § 845(a)
which doubles the maximum penalty for distribution of a controlled substance
to a person under the age of 21. (The latter provision would probably apply
to a high percentage of distribution offenses in the armed forces, given
the high proportion of persons in this age group in the armed forces.) These
special provisions were not adopted in favor of a simpler, more uniform punishment
system. The overall result is an absence of the higher punishment extremes
of the Federal system, while some of the offenses treated more leniently
in the lower end of the scale in the Federal system are subject to potentially
higher punishments in the military, for the reasons stated in the preceding
paragraph. There are no mandatory minimum sentences for any drug offense. _
See_ Article 56.
The expungement procedure in 21 U.S.C.
§ 844(b) and (c) is unnecessary and inappropriate for military
practice. Alternatives to prosecution for drug offenses already exist. _
See, e.g._, Article 15. The use of such alternatives is properly
a command prerogative.
Section 2 (now the last paragraph of subparagraph
for certain special situations, unique to the military, in which drug involvement
presents an even greater danger than normal. See 37 U.S.C.
§ 310 concerning hostile fire pay zones.
Section
3 (now subparagraphs b and c) amends paragraph 213, dealing with certain
offenses under Article 134. Paragraph 213_g_ replaces the
discussion of offenses involving some contraband drugs which was found in
the last paragraph of paragraph 213_b_ of MCM, 1969 (Rev.).
It was considered necessary to treat drug offenses more extensively in the
Manual for Court-Martial because of the significant incidence of drug offenses
in the military and because of the serious effect such offenses have in the
military environment. It was also necessary to provide a comprehensive treatment
of drugs, with a complete set of maximum punishments, in order to eliminate
the confusion, disruption, and disparate treatment of some drug offenses
among the services in the wake of _ United States v. Courtney_,
1 M.J. 438 (C.M.A. 1976); United States v. Jackson, 3 M.J.
101 (C.M.A. 1977); United States v. Hoesing, 5 M.J. 355
(C.M.A. 1978); United States v. Guilbault, 6 M.J. 20 (C.M.A.
1978); United States v. Thurman, 7 M.J. 26 (C.M.A. 1979).
The list of drugs specifically punishable under Article 134 has
been expanded to cover the substances which are, according to studies, most
prevalent in the military community. See, e.g., M. Burt,
_et al. Highlights from the Worldwide Survey of Nonmedical Drug Use
and Alcohol Use Among Military Personnel: 1980_. In addition, the
controlled substances which are listed in Schedules I through V of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (codified at 21 U.S.C. § 801 _
et seq._) as amended are incorporated. The most commonly abused drugs
are listed separately so that it will be unnecessary to refer to the controlled
substances list, as modified by the Attorney General in the Code of Federal
Regulations, in most cases. Most commanders and some legal offices do not
have ready access to such authorities.
The definition of possession is based upon _United States
4-144, Military Judges' Benchbook, DA PAM 27-9
(May 1982). See also United States v. Wilson, 7 M.J. 290
(C.M.A. 1979) and cases cited therein concerning the concept of constructive
possession. With respect to the inferences described in this subparagraph
and subparagraph (5) Wrongfulness, see United States v. Alvarez,
10 U.S.C.M.A. 24, 27 C.M.R. 98 (1958); United States v. Nabors,
10 U.S.C.M.A. 27, 27 C.M.R. 101 (1958). It is important to bear in mind that
distinction between inferences and presumptions. _See United States
Mahan_, 1 M.J. 303 (C.M.R. 1976). _See also United States
Baylor_, 16 U.S.C.M.A. 502, 37 C.M.R. 122 (1967).
This subparagraph is based on 21 U.S.C. § 802(8) and
(11). See also E. Devitt and C. Blackmar, 2 _Federal
Jury Practice and Instructions_, § 58.03 (3d ed. 1977).
"Distribution"
replaces "sale" and "transfer." This conforms with
Federal practice, _ see_ 21 U.S.C. § 841(a), and
will simplify military practice by reducing pleading, proof, and associated
multiplicity problems in drug offenses. _See, e.g., United States
_, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963). Evidence of sale is not
necessary to prove the offense of distributing a controlled substance. _
See United States v. Snow_, 537 F.2d 1166 (4th Cir. 1976); _
United States v. Johnson_, 481 F.2d 645 (5th Cir. 1973). Thus, the
defense of "agency", _ see United States v. Fruscella_,
21 U.S.C.M.A. 26, 44 C.M.R. 80 (1971), no longer applies in the military. _
Cf. United States v. Snow, supra; United States v. Pruitt_, 487 F.2d
1241 (8th Cir. 1973); United States v. Johnson, supra ("procuring
agent" defense abolished under 21 U.S.C. § 801 _
et seq._). Evidence of sale is admissible, of course, on the merits
as "part and parcel" of the criminal transaction (_see
United States v. Stokes_, 12 M.J. 229 (C.M.A. 1982); _cf.
United States v. Johnson, supra; see also_ Mil. R. Evid. 404(b)),
or in aggravation (see paragraph 75_b_(4)
of MCM, 1969 (Rev.); see also United States v. Vickers, 13
M.J. 403 (C.M.A. 1982)).
This definition is taken from 21 U.S.C. § 802(14). The
exception in 21 U.S.C. § 802(14) is covered in subparagraph (5).
This subparagraph is based on the last paragraph of paragraph 213_b_ of MCM, 1969 (Rev.). Cf. 21 U.S.C. § 822(c). _
See also United States v. West_, 15 U.S.C.M.A. 3, 34 C.M.R. 449 (1964);
paragraphs 4-144 and 145, Military Judges' Benchbook, DA PAM 27-9
(May 1982). It is not intended to perpetuate the holding in _United
States v. Rowe_, 11 M.J. 11 (C.M.A. 1981).
This subparagraph parallels Federal law which allows for increased
punishment for drug offenses with an intent to distribute. 21 U.S.C. §841(a)(1).
The discussion of circumstances from which an inference of intent to distribute
may be inferred is based on numerous Federal cases. _See, e.g., United
States v. Grayson_, 625 F.2d 66 (5th Cir. 1980); _United States
442 U.S. 919 (1979); United States v. Ramirez-Rodriquez,
552 F.2d 883 (9th Cir. 1977); United States v. Blake, 484
F.2d 50 (8th Cir. 1973); cert. denied, 417 U.S. 949 (1974). _
Cf. United States v. Mather_, 465 F.2d 1035 (5th Cir.1972), _
cert. denied_, 409 U.S. 1085 (1972). Possession of a large amount
of drugs may permit an inference but does not create a presumption of intent
to distribute. See Turner v. United States, 396 U.S. 398
(1970); United States v. Mahan, 1 M.J. 303 (C.M.A. 1976).
This subparagraph is based on _United States v. Alvarez
_, 10 U.S.C.M.A. 24, 27 C.M.R. 98 (1958); _United States v.
Brown_, 45 C.M.R. 416 (A.C.M.R. 1972); _United States v. Burns
_, 37 C.M.R. 942 (A.F.B.R. 1967); _United States v. Owens
_, 36 C.M.R. 909 (A.B.R. 1966).
_1993 Amendment.
_ Paragraph_ c_ was amended by adding new paragraphs
knowledge of the presence of the controlled substance as a required component
of the offense. See United States v. Mance, 26 M.J. 244
(C.M.A. 1988). The validity of a permissive inference of knowledge is recognized. _
See United States v. Ford_, 23 M.J. 331 (C.M.A. 1987); _United
States v. Harper_, 22 M.J. 157 (C.M.A. 1986). Subparagraph (11) precludes
an accused from relying upon lack of actual knowledge when such accused has
purposefully avoided knowledge of the presence or identity of controlled
substances. See United States v. Mance, supra, (Cox, J.,
concurring). When an accused deliberately avoids knowing the truth concerning
a crucial fact (i.e., presence or identity) and there is a high probability
that the crucial fact does exist, the accused is held accountable to the
same extent as one who has actual knowledge. _See United States v.
Newman_, 14 M.J. 474 (C.M.A. 1983). Subsection (11) follows federal
authority which equates actual knowledge with deliberate ignorance. _
See United States v. Ramsey_, 785 F.2d 184 (7th Cir. 1986), _
cert. denied_, 476 U.S. 1186 (1986).
Section 4 (now subparagraph
specifications 144 through 146 found in Appendix 6c of the MCM, 1969 (Rev.),
as modified to reflect the new comprehensive drug offense provision.
Section
5 provides an effective date for the new amendments.
Section 6
requires the Secretary of Defense to transmit these amendments to Congress.
Subparagraphs (1), (2), and (3) are based on paragraph 192 of MCM,
1969 (Rev.). Subparagraph (4) is based on _United States v. Seeser
_, 5 U.S.C.M.A. 472, 18 C.M.R. 96 (1955); paragraph 192 of MCM, 1969
(Rev.); paragraph 174 of MCM (Army), 1949; paragraph 174 of MCM (AF), 1949.
Subparagraph (6) is based on_ United States v. Williams_,
4 U.S.C.M.A. 69, 15 C.M.R. 69 (1954); _ United States v. Cook_,
31 C.M.R. 550 (A.F.B.R. 1961). See also United States v. Getman,
2 M.J. 279 (A.F.C.M.R. 1976).
This paragraph is based on paragraph 193 of MCM, 1969 (Rev.). The
explanation of conniving at fighting a duel was modified to reflect the
requirement for actual knowledge and to more correctly reflect the term connive.
The sample specification for conniving at fighting a duel was redrafted
to more accurately reflect the nature of the offense.
This paragraph is based on paragraph 194 of MCM, 1969 (Rev.). _
See also United States v. Kisner_, 15 U.S.C.M.A. 153, 35 C.M.R. 125
(1964); United States v. Mamaluy, 10 U.S.C.M.A. 102, 27
C.M.R. 176 (1959); United States v. Kersten, 4 M.J. 657
(A.C.M.R. 1977).
See United States v. Taylor, 17 U.S.C.M.A. 595,
38 C.M.R. 393 (1968).
The maximum punishments were changed to reflect the greater seriousness
of malingering in war or other combat situations and to add a greater measure
of deterrence in such cases.
This paragraph is based on paragraph 195 of MCM, 1969 (Rev.) and
United States v. Metcalf, 16 U.S.C.M.A. 153, 36 C.M.R. 309
(1966). The reference to "use of vile or abusive words to another in
a public place" contained in paragraph 195_b_ of MCM,
1969 (Rev.) has been replaced by the language contained in the fourth sentence
of subparagraph (2) since the former language was subject to an overly broad
application. See Gooding v. Wilson, 405 U.S. 518 (1972).
Riot- see United States v. Randolf, 49 C.M.R.
336 (N.C.M.R. 1974); United States v. Brice, 48 C.M.R. 368
(N.C.M.R. 1973).
Subparagraph (1) is based on paragraph 196 of MCM, 1969 (Rev.);
United States v. Thompson, 22 U.S.C.M.A. 88, 46 C.M.R. 88
(1972). See generally Gooding v. Wilson, 405 U.S. 518 (1972);
United States v. Hughens, 14 C.M.R. 509 (N.B.R. 1954).
Subparagraph (2) is based on the language of Article 117 and _United
States v. Bowden_, 24 C.M.R. 540 (A.F.B.R. 1957), _pet. denied
_, 24 C.M.R. 311 (1957). See also United States v. Lacy,
10 U.S.C.M.A. 164, 27 C.M.R. 238 (1959).
_1986 Amendment:
_ The listing of "Article 134- indecent language"
as a lesser included offense of provoking speeches was deleted. _
United States v. Linyear_, 3 M.J. 1027 (N.M.C.M.R. 1977), held that
provoking speeches is actually a lesser included offense of indecent language.
Also, indecent language carries a greater maximum punishment than provoking
speeches, which would be unusual for a lesser offense.
The maximum punishment was increased from that set forth in paragraph
127_c_ of MCM, 1969 (Rev.) to more accurately reflect the
seriousness of the offense.
2012 Amendment. This statute was modified pursuant to section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011, to conform to renamed sexual assault offenses in Article 120 and Article 120b. The changes took effect on 28 June 2012.
Element (b) in (3), _Act inherently dangerous to others
, has been modified based on United States v. Hartley_,
16 U.S.C.M.A. 249, 36 C.M.R. 405 (1966).
2007 Amendment: Paragraph (4) of the text and elements has been amended for consistency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of Section 552.
This paragraph is based on paragraph 197 of MCM, 1969 (Rev.). Subparagraphs
c(2)(b) is based on United States v. Sechler, 3 U.S.C.M.A.
363, 12 C.M.R. 119 (1953). As to subparagraph (c)(4)(A), _see United
States v. Vandenack_, 15 M.J. 428 (C.M.A. 1983). Subparagraph c(4)(b)
is based on_ United States v. Stokes_, 6 U.S.C.M.A. 65, 19
C.M.R. 191 (1955).
As to Article 118(3), see United States v. Roa,
12 M.J. 210 (C.M.A. 1982).
1993 Amendment: The
listed lesser included offenses of murder under Article 118(3) were changed
to conform to the rationale of_ United States v. Roa_, 12
M.J. 210 (C.M.A. 1982). Inasmuch as Article 118(3) does not require specific
intent, attempted murder, voluntary manslaughter, assault with intent to
murder and assault with intent to commit voluntary manslaughter are not lesser
included offenses of murder under Article 118(3).
_1995
Amendment:_ The word "others" was replaced by the word
"another" in Article 118(3) pursuant to the National Defense
Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat.
2315, 2506 (1992). This change addresses the limited language previously
used in Article 118(3) as identified in United States v. Berg,
30 M.J. 195 (C.M.A. 1990).
2007 Amendment: Paragraph (4) of the elements has been amended for consistency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of Section 552.
2008 Amendment: Notes were included to add an element if the person killed was a child under the age of 16 years.
2010 Amendment: Paragraph (4) of the elements is corrected to properly reflect the 2007 Amendment, which corrected wording not included in the 2008 Amendment.
This paragraph is based on paragraph 198 of MCM, 1969 (Rev.). _
See also United States v. Moglia_, 3 M.J. 216 (C.M.A. 1977); _
United States v. Harrison_, 16 U.S.C.M.A. 484, 37 C.M.R. 104 (1967);
United States v. Redding, 14 U.S.C.M.A. 242, 34 C.M.R. 22
(1963); United States v. Fox, 2 U.S.C.M.A. 465, 9 C.M.R.
95 (1953).
1994 Amendment. The amendment to paragraph
44e(1) increased the maximum period of confinement for voluntary manslaughter
to 15 years. The 10-year maximum confinement period was unnecessarily restrictive;
an egregious case of voluntary manslaughter may warrant confinement in excess
of ten years.
1994 Amendment. The amendment
to paragraph 44e(2) eliminated the anomaly created when the maximum authorized
punishment for a lesser included offense of involuntary manslaughter was
greater than the maximum authorized punishment for the offense of involuntary
manslaughter. For example, prior to the amendment, the maximum authorized
punishment for the offense of aggravated assault with a dangerous weapon
was greater than that of involuntary manslaughter. This amendment also facilitates
instructions on lesser included offenses of involuntary manslaughter. _
See United States v. Emmons_, 31 M.J. 108 (C.M.A. 1990).
2008 Amendment: The maximum confinement for voluntary manslaughter when the person killed was a child under the age of 16 years was increased to 20 years. The maximum confinement for involuntary manslaughter when the person killed was a child under the age of 16 years was increased to 15 years.
This and is based on Public Law 108-212, 18 U.S.C. § 1841 and 10 U.S.C. § 919a (Unborn Victims of Violence Act of 2004) enacted on 1 April 2004.
2012 Amendment. This paragraph was substantially revised by section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011. Amendments contained in this section took effect on 28 June 2012. Sec. 541(f), P.L. 112-81. On 28 June 2012, a modified paragraph 45, "Rape and sexual assault generally," replaced the 2007 version of paragraph 45, "Rape, sexual assault, and other sexual misconduct." The analysis related to prior versions of Article 120 is located as follows: for offenses committed prior to 1 October 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.
The 2012 version of Article 120 revises the 2007 version by removing child sexual offenses and miscellaneous sexual misconduct from the statute (placing them in Articles 120b and 120c, respectively); addressing constitutional problems identified by the Court of Appeals for the Armed Forces; simplifying the statutory scheme of Article 120; and expanding the definition of "sexual act" to make the offense gender neutral. The FY12 NDAA failed to repeal Article 125, thus criminalizing forcible sodomy offenses under both Article 120 and Article 125. Future legislation will be sought to clarify that forcible sodomy offenses are properly encompassed within Article 120.
The drafting of changes to Article 120 began shortly after the 2007 amendments became effective based on issues revealed in trials. The effort was reinforced by the Defense Task Force on Sexual Assault in the Military (DTFSAMS) recommendations in December 2009 that Article 120 be reviewed because it was cumbersome and confusing and there were problems relating to the constitutionality of the affirmative defense of consent. In addition, the Court of Appeals for the Armed Forces ruled that the statutory burden shift to the accused in the 2007 version of Article 120 was unconstitutional and the subsequent burden shift to the government to disprove consent beyond a reasonable doubt once the accused had raised the affirmative defense of consent by a preponderance of the evidence resulted in a legal impossibility. United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).
Rape: The offense of rape remains largely unchanged from the 2007 version. The primary difference in this revision is that rape by force is now rape by "unlawful" force. The word "unlawful" aligns the definition of force with Assault under Paragraph 54. This simplifies the treatment of the issue of consent. See United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). The victim's manifestation of lack of consent is now direct evidence that must be considered by the trier of fact. Also, the word "commits" was substituted for "engages in" a sexual act to remove any suggestion of reciprocal engagement in the act by the victim.
Sexual Assault: The offense is renamed "Sexual Assault" from "Aggravated Sexual Assault" in the 2007 version because the term "aggravated" led to confusion due to the fact that there was no sexual act offense of lesser severity. The definition of sexual assault by causing bodily harm was clarified to note that any sexual act or contact without consent constitutes bodily harm. The new sexual assault offense was broadened to include situations when the sexual act was committed upon fraudulent representation that the sexual act was for a medical purpose, or by inducing a belief that the accused was some other person. This covers "fraud in factum" situations previously covered by the pre-2007 version of Article 120. See United States v. Booker, 25 M.J. 114 (C.M.A. 1987). The new statute also clarifies previously confusing language from the 2007 version regarding the state of a victim's consciousness by prohibiting a sexual act with a person who the accused knows or reasonably should know is sleeping, unconscious, or otherwise unaware that the sexual act is occurring.
Sexual Contact offenses: Aggravated Sexual Contact and Abusive Sexual Contact remain significantly unchanged from the 2007 version of Article 120 except to substitute "commits" for "engages in" in accordance with the analysis above. Wrongful Sexual Contact is deleted because it is no longer necessary. Committing a sexual act upon another person by causing bodily harm constitutes Sexual Assault under Article 120(b) if the bodily harm consists of any offensive touching, including the nonconsensual sexual act itself. Abusive Sexual Contact is intended to cover acts where the sexual contact was committed in the same manner as a sexual act. Therefore, if sexual_ contact_ constitutes "bodily harm" (any offensive touching), then it will be considered Abusive Sexual Contact.
Defenses: The new Article 120 removes marriage as a defense to sexual assault offenses and removes the accused's burden with respect to raising a mistake of fact defense, clarifying that the accused may raise any applicable defense under the UCMJ or RCMs. This allows an accused to raise a mistake of fact defense without the unworkable burden shift as noted in Prather. See United States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (quoting United States v. Greaves, 40 M.J. 432, 433 (C.M.A. 1994) ("as a general matter, consent 'can convert what might otherwise be offense touching into nonoffensive touching' and that 'a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of legal excuse.'").
Definitions: Definitions from the former Article 120(t) have been renumbered as Article 120(g) and modified. As modified, the definition of "sexual act" has been broadened to include penetration of the vulva, anus, or mouth by the penis, and penetration of the vulva, anus, or mouth by any other part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. The definition of "sexual contact" has been broadened to include touching any part of the body with the intent to arouse or gratify the sexual desire of any person. The definition of "bodily harm" has been clarified to explain that offensive touching includes sexual acts or sexual contact without consent. The definition of "force" was simplified from its previous iteration, and the term "unlawful force" was defined in accordance with the definition for "unlawful force" as it relates to Article 128 contained in the 2010 edition of the Military Judges' Benchbook.
The 2012 amendments to Article 120 left the definition of "consent" generally unchanged, but simplified the structure of the definition and deleted restrictions regarding the use of consent evidence. The circular language in the 2007 version of Article 120, which used nearly identical words to explain the interaction of consent and capacity, was deleted. The treatment of consent was simplified and may be disputed when relevant. For example, the proposed change makes it clear that sleeping or unconscious persons cannot consent. In addition, persons subjected to a fraudulent representation of a professional purpose to accomplish the act, or under the belief that the person committing the act is another person, cannot consent because they do not understand to what they are consenting.
Finally, the amended definition of "consent" allows a permissive inference of lack of consent based on the circumstances of the case.
2007 Amendment: This and is based on section 551 of the
National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006.
2012 Amendment: This paragraph is new and is based on section 541 of the National Defense Authorization Act for Fiscal Year 2012 [FY12 NDAA], P.L. 112-81, 31 December 2011.
Amendments contained in this section take effect on 28 June 2012. Sec. 541(f), P.L. 112-81.
As of 28 June 2012, Article 120b criminalizes sexual offenses against children under the age of 16 which were previously contained in the 2007 version of Article 120. With several amendments for clarity and to make elements of each offense appropriate for child victims, the 2007 version of Article 120 was amended as follows: former Article 120(b) is now Article 120b.(a); former Article 120(d) was renamed from "Aggravated Sexual Assault of a Child" to "Sexual Assault of a Child" and is now Article 120b.(b); and former Article 120(f) was renamed from "Aggravated Sexual Abuse of a Child" to "Sexual Abuse of a Child" and is now Article 120b.(c). The definitions of prohibited sexual acts, sexual contact, and lewd acts have been broadened to cover all sexual offenses against children currently covered under the 2007 version of Article 120(g), Article 120(i), and Article 120(j).
Rape of a Child: The elements of "Rape of a Child" have been simplified from its previous version by eliminating reference to the former Article 120(a); broadening the acts which qualify as rape of a child by revising the elements pertaining to fear, rendering the child unconscious, and administering the child a drug, intoxicant, or other similar substance; and broadening the definition of sexual act to include penetration of the anus or mouth by the penis or penetration of the anus or mouth by any part of the body or by any object with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Furthermore, the defenses of mistake of fact as to age and marriage have been eliminated for cases involving rape of a child. When force is used with a sexual act upon a child over 12, it is sufficient to qualify as rape of a child. Therefore, by clarifying that a child under 16 cannot consent as a matter of law, the new Article 120b corrects the aberration of child rape offenses in the 2007 version of Article 120 which placed consent of a child under 16 at issue, and brings child rape offenses in line with long-standing military law regarding rape against a child.
Sexual Assault: The elements of "Sexual Assault of a Child" are nearly identical to elements that appeared in the 2007 version of Article 120(d). Under Article 120b.(b), an accused will be strictly liable for committing a sexual act upon a child under 16 unless the accused can prove mistake of fact as to age by a preponderance of the evidence.
Sexual Abuse: The new "Sexual Abuse of a Child" offense under Article 120b.(c), which proscribes committing a "lewd act" upon a child, was intended to consolidate the 2007 version of Article 120(f), Article 120(g), Article 120(i), and Article 120(j), by expanding the definition of "lewd act" to include any sexual contact with a child, indecent exposure to a child, communicating indecent language to a child, and committing indecent conduct with or in the presence of a child. Exposure, communication, and indecent conduct now include offenses committed via any communication technology to encompass offenses committed via the internet (such as exposing oneself to a child by using a webcam), cell phones, and other modern forms of communication. This change expands the pre-2012 definition of "indecent liberty" which proscribed conduct only if committed in the physical presence of a child. The defense of mistake of fact as to age is available when the child is over 12 years, which the accused must prove by a preponderance of evidence.
Consent: Subsection (g) explicitly states that lack of consent need not be proven for any sexual offense against a child and that a child may not consent as a matter of law. No change is intended from long-standing military law in this area.
2012 Amendment: This paragraph is new and is based on section 541 of the National Defense Authorization Act for Fiscal Year 2012 [FY12 NDAA], P.L. 112-81, 31 December 2011. This section takes effect on 28 June 2012. Sec. 541(f), P.L. 112-81. The new Article 120c. encompasses offenses contained in the 2007 version of Article 120(k), Article 120(l), and Article 120(n), and is intended to criminalize non-consensual sexual misconduct that ordinarily subjects an accused to sex offender registration.
Indecent Viewing, Visual Recording, or Broadcasting: This offense clarifies the Indecent Act offense previously covered by the 2007 version of Article 120(k). The new Article 120c.(a) makes clear that both viewing and recording are offenses and explicitly creates an offense for distribution of any recording made in violation of the statute, which was not clearly prohibited under the 2007 version of Article 120(k).
Forcible pandering: With minor clarifying changes, Article 120c.(b) remains unchanged from the 2007 version of Article 120(l). Non-forcible pandering and non-forcible prostitution remain offenses under paragraph 97, Part IV.
Indecent exposure: This offense encompasses the offense proscribed by the 2007 version of Article 120(n), and expands it to include situations in which the exposure is indecent - even if committed in a place where it would not be reasonably be expected to be viewed by people other than members of the actor's family or household.
This paragraph is based on paragraph 200 of MCM, 1969 (Rev.). The
discussion in the fourth and fifth sentences of paragraph 200_a_(4) was deleted as ambiguous and overbroad. The penultimate sentence in subparagraph
c(1)(d) adequately covers the point. C. Torcia, _2 Wharton's Criminal
Law and Procedure_ § 393 (1980); _Hall v. United States
, 277 Fed. 19 (8th Cir. 1921). As to subparagraph c(1)(c),
see also United States v. Leslie_, 13 M.J. 170 (C.M.A. 1982). As
to subparagraph c(1)(d), see also United States v. Smith,
14 M.J. 68 (C.M.A. 1982); United States v. Cunningham, 14
M.J. 539 (A.C.M.R. 1981). As to subparagraph c(1)(f), _see also United
States v. Kastner_, 17 M.J. 11 (C.M.A. 1983); _United States
States v. O'Hara_, 14 U.S.C.M.A. 167, 33 C.M.R. 379 (1963); _
United States v. Hayes_, 8 U.S.C.M.A. 627, 25 C.M.R. 131 (1958).
As to subparagraph c(1)(h)(i), see also United States v. Malone,
14 M.J. 563 (N.M.C.M.R. 1982).
2002 Amendment: Subparagraph c(1)(h)(vi) is new. It was added to provide guidance on how unauthorized
credit, debit, or electronic transactions should usually be charged. _
See United States v. Duncan_, 30 M.J. 1284, 289 (N.M.C.M.R. 1990)
(citing United States v. Jones, 29 C.M.R. 651 (A.B.R. 1960), pet. denied, 30 C.M.R. 417 (C.M.A. 1960)) (regarding thefts from ATM machines). Alternative charging theories are also available,
see United States v. Leslie, 13 M.J. 170 (C.M.A. 1982); _United
States v. Ragins_, 11 M.J. 42 (C.M.A. 1981); _United States
United States v. Christy_, 18 M.J. 688 (N.M.C.M.R. 1984). The key
under Article 121 is that the accused wrongfully obtained goods or money
from a person or entity with a superior possessory interest.
The maximum punishments have been revised. Instead of three levels
($50 or less, $50 to $100, and over $100) only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in civilian jurisdictions.
The maximum punishment for larceny or wrongful appropriation of a firearm
or explosive includes 5 or 2 years' confinement respectively. This is because,
regardless of the intrinsic value of such items, the threat to the community
and disruption of military activities is substantial when such items are
wrongfully taken. Special accountability and protective measures are taken
with firearms and explosives, and they may be the target of theft regardless
of value.
1986 Amendment: The maximum punishments
for larceny were revised as they relate to larceny of military property to
make them consistent with the punishments under Article 108 and paragraph
32e, Part IV, MCM, 1984. Before this amendment, a person who stole military
property faced less punishment than a person who willfully damaged, destroyed,
or disposed of military property. The revised punishments are also consistent
with 18 U.S.C. § 641.
2002 Amendment: The
monetary amount affecting the maximum punishments has been revised from $100
to $500 to account for inflation. The last change was in 1969 raising the
amount to $100. The value has also been readjusted to realign it more closely
with the division between felony and misdemeanor penalties in civilian jurisdictions. _
See generally_ American Law Institute, Model Penal Code and Commentaries
Sec. 223.1 (1980) (suggesting $500 as the value). Although the monetary
amount effecting punishment in 18 U.S.C. § 1361, Government property
or contracts, and 18 U.S.C. § 641, Public money, property or records,
was increased from $100 to $1000 pursuant to section 606 of the Economic
Espionage Act of 1996, P. L. No. 104-294, 110 Stat. 3488 (1996), a value
of $500 was chosen to maintain deterrence, simplicity, and uniformity for
the Manual's property offenses.
This paragraph is based on paragraph 201 of MCM, 1969 (Rev.). _
See also United States v. Chambers_, 12 M.J. 443 (C.M.A. 1982); _
United States v. Washington_, 12 M.J. 1036 (A.C.M.R. 1982), _
pet. denied_, 14 M.J. 170 (1982). Subparagraph (5) is based on _
United States v. Parker_, 17 U.S.C.M.A. 545, 38 C.M.R. 343 (1968).
See United States v. Calhoun, 5 U.S.C.M.A. 428,
18 C.M.R. 52 (1955).
The aggravating factor of use of a firearm in the commission of
a robbery, and a higher maximum punishment in such cases, have been added
because of the increased danger when robbery is committed with a firearm
whether or not loaded or operable. Cf. 18 U.S.C. §§
2113 and 2114; United States v. Shelton, 465 F.2d 361 (4th
Cir. 1972); United States v. Thomas, 455 F.2d 320 (6th Cir.
1972); _ Baker v. United States_, 412 F.2d 1069 (5th Cir. 1969). _
See also_ U.S. Dep't of Justice, _Attorney General's Task
Force on Violent Crime, Final Report_ 29-33 (Aug. 17, 1981).
The 15-year maximum is the same as that for robbery under 18 U.S.C. § 2111.
This paragraph is based on paragraph 202 of MCM, 1969 (Rev.).
without sufficient funds
This paragraph is based on paragraph 202A of MCM, 1969 (Rev.). The
language in paragraph 202A using an illegal transaction such as an illegal
gambling game as an example of "for any other purpose" was eliminated
in subparagraph (7), based on United States v. Wallace,
15 U.S.C.M.A. 650, 36 C.M.R. 148 (1966). The statutory inference found in
Article 123a and explained in subparagraph (17) was not meant to preempt
the usual methods of proof of knowledge and intent. _ See_ S.Rep.
No. 659, 87th Cong. 1st Sess. 2 (1961). Subparagraph (18) is based on _
United States v. Callaghan_, 14 U.S.C.M.A. 231, 34 C.M.R. 11 (1963). _
See also United States v. Webb_, 46 C.M.R. 1083 (A.C.M.R. 1972).
As to share drafts see also United States v. Palmer, 14
M.J. 731 (A.F.C.M.R. 1982); United States v. Grubbs, 13
M.J. 594 (A.F.C.M.R. 1982).
The maximum punishment for subsection (1) has been revised. Instead
of three levels ($50 or less, $50 to $100, and over $100) only two are used.
This is simpler and conforms more closely to the division between felony
and misdemeanor penalties contingent on value in property offenses in civilian
jurisdiction.
2002 Amendment: The monetary amount
affecting the maximum punishments has been revised from $100 to $500 to account
for inflation. The last change was in 1969 raising the amount to $100. The
value has also been readjusted to realign it more closely with the division
between felony and misdemeanor penalties in civilian jurisdictions. _
See generally_ American Law Institute, Model Penal Code and Commentaries
Sec. 223.1 (1980) (suggesting $500 as the value).
See also United States v. Palmer and _
United States v. Grubbs_, both supra (pleading share
drafts; pleading more than one check or draft).
This paragraph is based on paragraph 203 of MCM, 1969 (Rev.). Subparagraph
c(3) is based on United States v. Hicks, 6 U.S.C.M.A. 621,
20 C.M.R. 337 (1956). The discussion of intent has been modified to reflect
that some specific intent to injure is necessary. _ United States v.
Hicks, supra._ The third sentence of the third paragraph of paragraph
203 of MCM, 1969 (Rev.), which was based on _ Hicks (see Analysis of
Contents, Manual for Courts-martial, United States, 1969 (Revised edition)
, DA PAM 27-2 at 28-15), was misleading in this regard.
Contra United States v. Tua_, 4 M.J. 761 (A.C.M.R. 1977), _
pet. denied_, 5 M.J. 91 (1978).
2007 Amendment: The maximum punishment for the offense of maiming was increased from 7 years confinement to 20 years confinement, consistent with the federal offense of maiming. 18 U.S.C. § 114.
2015 Amendment. Paragraph 51 was amended pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013. Additionally, all applicable references to sodomy throughout the Manual were changed to "forcible sodomy" to reflect the decriminalization of consensual sodomy under the UCMJ.
2004 Amendment: Paragraph 51(b) was amended by
adding two factors pertaining to age based upon the 1994 amendment to paragraph
51(e) that created two distinct categories of sodomy involving a child. _
See also_ concurrent change to R.C.M. 307(c)(3) and accompanying analysis.
This paragraph is based on paragraph 204 of MCM, 1969 (Rev.). Fellatio
and cunnilingus are within the scope of Article 125. _See United States
_, 5 M.J. 160 (C.M.A. 1978). For a discussion of the possible constitutional
limitations on the application of Article 125 (for example, the sexual activity
of a married couple), see United States v. Scoby, supra.
The Analysis accompanying subparagraph 51e is amended by inserting
the following at the end thereof:
1994 Amendment. One
of the objectives of the Sexual Abuse Act of 1986, 18 U.S.C. §§
2241-2245 was to define sexual abuse in gender-neutral terms. Since
the scope of Article 125, UCMJ, accommodates those forms of sexual abuse
other than the rape provided for in Article 120, UCMJ, the maximum punishments
permitted under Article 125 were amended to bring them more in line with
Article 120 and the Act, thus providing sanctions that are generally equivalent
regardless of the victim's gender. Subparagraph e(1) was amended by increasing
the maximum period of confinement from 20 years to life. Subparagraph e(2)
was amended by creating two distinct categories of sodomy involving a child,
one involving children who have attained the age of 12 but are not yet 16,
and the other involving children under the age of 12. The latter is now designated
as subparagraph e(3). The punishment for the former category remains the
same as it was for the original category of children under the age of 16.
This amendment, however, increases the maximum punishment to life when the
victim is under the age of 12 years.
Lesser included offenses.
2007 Amendment: The former Paragraph 87(1)(b), Article 134 Indecent Acts or Liberties with a Child, has been replaced in its entirety by paragraph 45. The former Paragraph 63(2)(c), Article 134 Assault - Indecent, has been replaced in its entirety by paragraph 45. The former Paragraph 90(3)(a), Article 134 Indecent Acts with Another, has been replaced in its entirety by paragraph 45. Lesser included offenses under Article 120 should be considered depending on the factual circumstances in each case.
The maximum punishment for forcible sodomy was raised in recognition
of the severity of the offense which is similar to rape in its violation
of personal privacy and dignity.
2004 Amendment: Paragraph 51(f) was amended to
aid practitioners in charging the two distinct categories of sodomy involving
a child created in 1994. See also concurrent change to R.C.M.
307(c)(3) and accompanying analysis.
This paragraph is based on paragraph 205 of MCM, 1969 (Rev.). _
See United States v. Acevedo-Velez_, 17 M.J. 1 (C.M.A.1983); _
United States v. Duke_, 16 U.S.C.M.A. 460, 37 C.M.R. 80 (1966); _
United States v. Scott_, 8 M.J. 853 (N.C.M.R. 1980); _ United
States v. Jones_, 2 M.J. 785 (A.C.M.R. 1976).
The maximum period of confinement for simple arson of property of
a value of more than $100 has been reduced from 10 to 5 years. This parallels
18 U.S.C. § 81. The separate punishment for simple arson of property
of a value of $100 or less has been retained because 18 U.S.C. § 81 does
not cover most personal property.
2002 Amendment: The
monetary amount affecting the maximum punishments has been revised from $100
to $500 to account for inflation. The last change was in 1969 raising the
amount to $100. The value has also been readjusted to realign it more closely
with the division between felony and misdemeanor penalties in civilian jurisdictions. _
See generally_ American Law Institute, Model Penal Code and Commentaries
Sec. 223.1 (1980) (suggesting $500 as the value). A value of $500 was chosen
to maintain deterrence, simplicity, and uniformity for the Manual's property
offenses. 18 U.S.C. Sec. 81, Arson within special maritime and territorial
jurisdiction, no longer grades the offense on the basis of value.
This paragraph is based on paragraph 206 of MCM, 1969 (Rev.). _
See also United States v. Schmidt_, 16 U.S.C.M.A. 57, 36 C.M.R. 213
(1966); R. Perkins, Criminal Law 373-74 (2d ed. 1969).
Subparagraph (4) is based on United States v. McCollum,
13 M.J. 127 (C.M.A. 1982).
This paragraph is based on paragraph 207 of MCM, 1969 (Rev.). _
See also United States v. Vigil_, 3 U.S.C.M.A. 474, 13 C.M.R. 30
23 U.S.C.M.A. 31, 48 C.M.R. 405 (1974) (grievous bodily harm).
The maximum punishment for (2) Assault consummated by a battery
has been increased because of the range of types of harm which may be caused
by a battery. These may include serious injury, even though unintended or
not caused by a means or force likely to produce grievous bodily harm. The
maximum punishment for (6) Assault upon a sentinel or lookout in the execution
of duty, or upon any person who, in the execution of office, is performing
security police, military police, shore patrol, master at arms, or other
military or civilian law enforcement duties, has been increased based on
18 U.S.C. § 111 and 18 U.S.C. § 1114. The maximum
punishment for aggravated assaults committed with firearms has been increased
based on 18 U.S.C. § 924(c). See also U.S. Dep't
of Justice, _Attorney General's Task Force on Violent Crime, Final
Report_ 29-33 (Aug. 17, 1981). Note that the higher maximum
for assault with a dangerous weapon when the weapon is a firearm applies
even if the firearm is used as a bludgeon. This is because the danger injected
is significantly greater when a loaded firearm is used, even as a bludgeon.
In
certain situations, this punishment scheme may have the effect of making
intentional infliction of grievous bodily harm a lesser included offense
of assault with a dangerous weapon. For example, if in the course of an assault
with a loaded firearm the accused or a coactor stabs the victim with a knife,
the assault with a dangerous weapon (the firearm) would carry an 8 year maximum
penalty, as opposed to 5 years for the assault intentionally inflicting grievous
bodily harm. In such a case, the specification should be carefully tailored
to describe each facet of the assault.
_1998 Amendment:
_ A separate maximum punishment for assault with an unloaded firearm
was created due to the serious nature of the offense. Threatening a person
with an unloaded firearm places the victim of that assault in fear of losing
his or her life. Such a traumatic experience is a far greater injury to
the victim than that sustained in the course of a typical simple assault.
Therefore, it calls for an increased punishment.
2007 Amendment: The maximum punishments for some aggravated assault offenses were established to recognize the increased severity of such offenses when children are the victims. These maximum punishments are consistent with the maximum punishments of the Article 134 offense of Child Endangerment, established in 2007.
This paragraph is based on paragraph 208 of MCM, 1969 (Rev.). _
See also United States v. Klutz_, 9 U.S.C.M.A. 20, 25 C.M.R. 282
(1958). Subparagraph c(2) and (3) have been revised based on R. Perkins,
Criminal Law 192-193 and 199 (2d ed. 1969). As to
subparagraph c(2),_ see also_ 13 AM.Jur. 2d _ Burglary
_ § 18 (1964); Annot., 70 A.L.R. 3d 881 (1976).
See United States v. Knight, 15 M.J. 202 (C.M.A.
1983).
This paragraph is based on paragraph 209 of MCM, 1969 (Rev.) and
United States v. Gillin, 8 U.S.C.M.A. 669, 25 C.M.R. 173
(1958). See also United States v. Breen, 15 U.S.C.M.A. 658,
36 C.M.R. 156 (1966); United States v. Hall, 12 U.S.C.M.A.
374, 30 C.M.R. 374 (1961); United States v. Taylor, 12 U.S.C.M.A.
44, 3O C.M.R. 44 (1960) (all regarding "structure"); _
United States v. Weaver_, 18 U.S.C.M.A. 173, 39 C.M.R. 173 (1969)
("separate offense");_ United States v. Williams_,
4 U.S.C.M.A. 241, 15 C.M.R. 241 (1954) ("entry").
Subparagraph (1) and (2) are based on paragraph 210 of
MCM, 1969 (Rev.). In the last sentence of subparagraph (2)(a), the phrase
"unless the witness was forced to answer over a valid claim of privilege" which
appeared at the end of the fourth paragraph of paragraph 210 of MCM, 1969
(Rev.) has been deleted based on United States v. Mandujano,
425 U.S. 564 (1976); Harris v. New York, 401 U.S. 222 (1971).
See also United States v. Armstrong, 9 M.J. 374 (C.M.A.
1980). Subparagraph (3) is new and is based on Public Law 94-550 of
1976 which amended Article 131 by adding a second clause based on section
1746 of title 28 United States Code, which was also enacted as part of Pub.L.
No. 94-550.
_Text of section 1746 of title 28, United
States Code_
§ 1746. Unsworn declarations
under penalty of perjury.
Whenever, under any law of the United
States or under any rule, regulation, order, or requirement made pursuant
to law, any matter is required or permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification, certificate, statement,
oath, or affidavit, in writing of the person making the same (other than
a deposition, or an oath of office, or an oath required to be taken before
a specified official other than a notary public), such matter may, with like
force and effect, be supported, evidenced, established, or proved by the
unsworn declaration, certificate, verification, or statement, in writing
of such person which is subscribed by him, as true under penalty of perjury,
and dated, in substantially the following form:
verify, or state) under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct. Executed on (date).
(Signature)"
or commonwealths: "I declare (or certify, verify, or state) under penalty
of perjury that the foregoing is true and correct. Executed on (date).
(Signature)"
If someone signs a statement under
penalty of perjury outside a judicial proceeding or course of justice, and
Article 107 (false official statement) is not applicable, it may be possible
to use Article 134 (clause 3) (see paragraph 60) to charge
a violation of 18 U.S.C. § 1621.
_Text of
section 1621 of title 18, United States Code_
§ 1621.
Perjury generally
Whoever-
in any case in which a law of the United States authorizes an oath to be
administered, that he will testify, declare, depose, or certify truly, or
that any written testimony, declaration, deposition, or certificate by him
subscribed, is true, willfully and contrary to such oath states or subscribes
any material which he does not believe to be true; or
penalty of perjury as permitted under section 1746 of title 28, United States
Code, willfully subscribes as true any material matter which he does not
believe to be true; is guilty of perjury and shall, except or otherwise
expressly provided by law, be fined not more than $2,000 or imprisoned not
more than five years, or both. This section is applicable whether the statement
or subscription is made within or without the United States.
_
2004 Amendment:_ Subsection (2)(b) was amended to comply with _
United States v. Gaudin,_ 515 U.S. 506 (1995), which held that when
materiality is a statutory element of an offense, it must be submitted to
the jury for decision. Materiality cannot be removed from the members' consideration
by an interlocutory ruling that a statement is material. _See Gaudin,
_ 515 U.S. at 521 ("It is commonplace for the same mixed question
of law and fact to be assigned to the court for one purpose, and to the jury
for another."); and at 517 ("The prosecution's failure to provide
minimal evidence of materiality, like its failure to provide minimal evidence
of any other element, of course raises a question of 'law' that warrants dismissal.").
1991 Amendment: Subparagraph _
d_ was amended by deleting false swearing as a lesser included offense
of perjury. See United States v. Smith, 26 C.M.R. 16 (C.M.A.
1958); MCM 1984, Part IV, para. 79c(1). Although closely related to perjury,
the offense of false swearing may be charged separately.
This paragraph is based on paragraph 211 of MCM, 1969 (Rev.).
The maximum punishments have been revised. Instead of three levels
($50 or less, $50 to $100, and over $100) only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in civilian jurisdictions.
_
2002 Amendment:_ The monetary amount affecting the maximum punishments
has been revised from $100 to $500 to account for inflation. The last change
was in 1969 raising the amount to $100. The value has also been readjusted
to realign it more closely with the division between felony and misdemeanor
penalties in civilian jurisdictions. See generally American
Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting
$500 as the value).
This paragraph is based on paragraph 212 of MCM, 1969 (Rev.). _
See Parker v. Levy_, 417 U.S. 733 (1974) (constitutionality of Article
133). For a discussion of Article 133, _see United States v. Giordano
, 15 U.S.C.M.A. 163, 35 C.M.R. 135 (1964); Nelson, Conduct
Expected of an Officer and a Gentleman: Ambiguity_, 12 A.F.JAG L.Rev.
124 (Spring 1970). As to subparagraph (1), see 1 U.S.C.
§ 1; Pub.L. No. 94-106, § 803, 89 Stat. 537-38
(Oct. 7, 1975).
A maximum punishment is established for the first time in order
to provide guidance and uniformity for Article 133 offenses.
Some sample specifications for Article 133 in MCM, 1969 (Rev.) were
deleted solely to economize on space.
Introduction. Paragraph 60 introduces the
General Article. Paragraph 61-113 describe and list the maximum punishments
for many offenses under Article 134. These paragraphs are not exclusive. _
See generally Parker v. Levy_, 417 U.S. 733 (1974); _United
States v. Sadinsky_, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964).
Except
as otherwise noted in the Analyses of paragraphs 61-113, the offenses
listed below are based on paragraph 127_c_ (Table of Maximum
Punishments), paragraph 213_f_, and Appendix 6 (sample specifications
126-187) of MCM, 1969 (Rev.). Eight offenses previously listed (allowing
prisoner to do unauthorized acts, criminal libel, criminal nuisance, parole
violation, statutory perjury, transporting stolen vehicle in interstate commerce,
unclean accoutrements, and unclean uniform) are not listed here because they
occur so infrequently or because the gravamen of the misconduct is such that
it is more appropriately charged under another provision.
Except as noted below, this paragraph is based on paragraph 213_a_ through_ e_ of MCM, 1969 (Rev.).
See Secretary of the Navy v. Avrech, 418 U.S.
676 (1974); Parker v. Levy, supra (constitutionality of
Article 134 upheld).
(4)(c)(ii) _Federal Assimilative Crimes
Act. See United States v. Wright_, 5 M.J. 106 (C.M.A. 1978); _
United States v. Rowe_, 13 U.S.C.M.A. 302, 32 C.M.R. 302 (1962).
(5)(a)_
Preemption doctrine. See United States v. McCormick_, 12 U.S.C.M.A.
26, 30 C.M.R. 26 (1960) (assault on child under 16); _United States
the enemy); United States v. Deller, 3 U.S.C.M.A. 409, 12
C.M.R. 165 (1953) (absence offenses); United States v. Norris,
2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953) (larceny). But see the
following cases for examples of where offenses not preempted: _United
States v. Wright, supra_ (burglary of automobile); _United
States v. Bonavita_, 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972) (concealing
stolen property); United States v. Maze, 21 U.S.C.M.A. 260,
45 C.M.R. 34 (1972) (unlawfully altering public records); _United
States v. Taylor_, 17 U.S.C.M.A. 595, 38 C.M.R. 393 (1968) (self-inflicted
injury with no intent to avoid Service) United States v. Gaudet,
11 U.S.C.M.A. 672, 29 C.M.R. 488 (1960) (stealing from mail); _United
States v. Fuller_, 9 U.S.C.M.A. 143, 25 C.M.R. 405 (1958) (fraudulent
burning); United States v. Holt, 7 U.S.C.M.A. 617, 23 C.M.R.
81 (1957) (graft, fraudulent misrepresentation).
(5)(b) Capital offense. See United States v. French, 10 U.S.C.M.A. 171,
27 C.M.R. 245 (1959).
(6)(a) In general.
2015 Amendment. In 2012 the Manual was amended to address the changes in practice resulting from the holding in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2015, the President required that the terminal element be expressly alleged in every Article 134 specification.
The President ended the historical practice of allowing the terminal element to be inferred from Article 134 specifications, see, e.g. United States v. Mayo, 12 M.J. 286 (C.M.A. 1982), and required the terminal element be expressly alleged to provide sufficient notice to the accused and for uniformity and consistency in practice. See Fosler, 70 M.J. at 227-28. In general, when drafting specifications, the Government must allege every element, either expressly or by necessary implication. See R.C.M. 307(c)(3). However, in Article 134 specifications, the accused must be given notice as to which clause or clauses he must defend against; therefore, the terminal element may not be inferred from a specification.
Although a single terminal element is required, there are three theories of liability that would satisfy the terminal element: a disorder or neglect to the prejudice of good order and discipline (under clause 1); conduct of a nature to bring discredit upon the armed forces (under clause 2); or a crime or offense not capital (under clause 3). The three clauses are "distinct and separate." Fosler, 70 M.J. at 230. A single theory may be alleged, or clauses 1 and 2 may be combined. While it is not prohibited to combine clauses 1, 2, and 3 in one specification, such a combination is not practical.
When charging both clauses 1 and 2, practitioners are encouraged to use the word "and" to separate the theories in one specification, rather than using the word "or" to separate the theories. Practitioners may also allege two separate specifications. At findings, the Trial Counsel or Military Judge must make certain that the record is clear as to whether the trier of fact found that clause 1, clause 2, or both clauses were proven beyond a reasonable doubt. Using the word "and" to separate clauses 1 and 2 in the terminal element allows the trier of fact to except the unproven clause from the specification. This approach forces intellectual rigor in analyzing each clause as distinct and separate. Nothing in this analysis should be read to suggest that a specification connecting the two theories with the disjunctive "or" necessarily fails to give the accused reasonable notice of the charge against him. See United States v. Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (per curiam) (citing Russell v. United States, 369 U.S. 749, 765 (1962)).
2012 Amendment. Subparagraph (6)(a) formerly had no analysis. See MCM (2008 Edition). In 2011, the Court of Appeals for the Armed Forces held that an Article 134 specification fails to state an offense when it does not expressly or by necessary implication allege at least one of the three terminal elements, i.e., that the alleged conduct was: prejudicial to good order and discipline; service discrediting; or a crime or offense not capital. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). As a result of Fosler, and in an abundance of caution, practitioners should expressly allege the terminal element in every Article 134 specification. The Fosler Court addressed the historical practice of inferring the terminal elements in Article 134 charges, see, e.g. United States v. Mayo, 12 M.J. 286 (C.M.A. 1983), and noted that recent cases have required a greater degree of specificity in charging. Fosler, 70 M.J. at 227-8 (citing Schmuck v. United States, 489 U.S. 705 (1989)). An accused must be given notice as to which clause or clauses he must defend against, and including the word and figures "Article 134" in a charge does not by itself allege the terminal element expressly or by necessary implication. Fosler, 70 M.J. at 229. It is important for the accused to know whether the offense in question is: a disorder or neglect to the prejudice of good order and discipline under clause 1, conduct of a nature to bring discredit upon the armed forces under clause 2, a crime not capital under clause 3, or all three.
Fosler, 70 M.J. at 229 (citing United States v. Medina, 66 M.J. 21, 26. (C.A.A.F.). See United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). See also paragraph 60c(1)-(4) of Part IV for an explanation of clause 1, 2, and 3 offenses under Article 134.
(6)(b) _Specifications under clause
United States v. Perry_, 12 M.J. 112 (C.M.A. 1981); _ United
States v. Rowe, supra; United States v. Hogsett_, 8 U.S.C.M.A. 681,
25 C.M.R. 185 (1958).
2015 Amendment. New discussion was added in 2012 to address United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2015, that discussion was removed after paragraph 60 was amended by Executive Order. See analysis under subparagraph c.(6)(a) above.
(6)(c) _Specifications for clause
1 or 2 offenses not listed. See United States v. Sadinsky, supra; United
States v. Mardis_, 6 U.S.C.M.A 624, 20 C.M.R. 340 (1956).
This new paragraph defines "public animal."
_, 4 C.M.R. 15 (1952); United States v. Ruiz, 46
M.J. 503 (A. F. Ct. Crim. App. 1997); United States v. Green,
39 M.J. 606 (A.C.M.R. 1994); United States v. Collier,
36 M.J. 501 (A.F.C.M.R. 1992); United States v. Perez, 33
M.J. 1050 (A.C.M.R. 1991); United States v. Linnear, 16
M.J. 628 (A.F.C.M.R. 1983); Part IV, paragraph 60c(2)(a) of MCM. Subparagraph
c(3) is based on United States v. Poole, 39 M.J. 819 (A.C.M.R.
1994). Subparagraph c(4) is based on United States v. Fogarty,
35 M.J. 885 (A.C.M.R. 1992); Military Judges' Benchbook,
DA PAM 27-9, paragraph 3-62-1 and 5-11-2 (30 Sep. 1996). See R.C.M.
916(j) and (l)(1) for a general discussion of mistake of fact and ignorance,
which cannot be based on a negligent failure to discover the true facts.
While each commander has discretion to dispose of offenses by members of the command, wholly private and consensual sexual conduct between adults is generally not punishable under this paragraph. The right to engage in such conduct, however, is tempered in a military context by the mission of the military, the need for cohesive teams, and the need for obedience to orders. Cases involving fraternization or other unprofessional relationships may be more appropriately charged under Article 92 or Article 134-Fraternization. Cases involving abuse of authority by officers may be more appropriately charged under Article 133.
Rule for Courts-Martial 306(b) advises commanders to dispose of alleged offenses at the lowest appropriate level. As the R.C.M. 306(b) discussion states, many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offense, any mitigating or extenuating circumstances, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the effect of the decision on the military member and the command. The goal should be a disposition that is warranted, appropriate, and fair. In the case of officers, also consult the explanation to paragraph 59 of Part IV in deciding how to dispose of an allegation of adultery.
manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking)
This paragraph is based on paragraph 213_f_(1) of
MCM, 1969 (Rev.).
2007 Amendment. This paragraph has been amended for consistency with the changes to Article 118 under Section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of Section 552.
This paragraph is based on paragraph 213_f_(9) of
MCM, 1969 (Rev.). See also United States v. Pruitt, 17
U.S.C.M.A. 438, 38 C.M.R. 236 (1968), concerning the defense of mistake.
This is based on _United States v.
Marshall_, 18 U.S.C.M.A. 426, 40 C.M.R. 138 (1969); _United
States v. Alexander_, 3 U.S.C.M.A. 346, 12 C.M.R. 102 (1953). _
See also United States v. Eslow_, 1 M.J. 620 (A.C.M.R. 1975).
Graft is listed as a lesser included offense of bribery. _
See United States v. Raborn_, 575 F.2d 688 (9th Cir. 1978); _
United States v. Crutchfield_, 547 F.2d 496 (9th Cir. 1977).
The maximum punishment for bribery has been revised to reflect the
greater seriousness of bribery, which requires a specific intent to influence.
See also 18 U.S.C. § 201.
This paragraph and is self-explanatory. For a discussion
of this offense see United States v. Fuller, 9 U.S.C.M.A.
143, 25 C.M.R. 405 (1958).
dishonorably failing to maintain funds)
This paragraph is based on paragraph 213_f_(8) of
MCM, 1969 (Rev.). See also United States v. Groom, 12 U.S.C.M.A.
11, 30 C.M.R. 11 (1960).
See United States v. Downard, 6 U.S.C.M.A. 538,
20 C.M.R. 254 (1955).
2007 Amendment: This to the Manual for Courts-Martial. Child neglect was recognized in United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It is based on military custom and regulation as well as a majority of state statutes and captures the essence of child neglect, endangerment, and abuse.
2012 Amendment: This offense is new to the Manual for Courts-Martial. It is generally based on 18 U.S.C. §2252A, as well as military custom and regulation. The possession, receipt, distribution and viewing of child pornography has been recognized as an offense under clause 1 or 2 of Article 134, or under clause 3 as an assimilated crime under 18 U.S.C. § 2251. This offense was added by Executive Order 13593, signed 13 December 2011. See Appendix 25. This paragraph applies to offenses committed on or after 12 January 2012.
This and is based on _United States v.
Acosta_, 19 U.S.C.M.A. 341, 41 C.M.R. 341 (1970); _United States
States v. Leach_, 7 U.S.C.M.A. 388, 22 C.M.R. 178 (1956); and _
United States v. Boswell_, 35 C.M.R. 491 (A.B.R. 1964), _
pet. denied_, 35 C.M.R. 478 (1964).
Introduction. The elements and sample specifications
have been modified by replacing "duly" with "by a person
authorized to do so." See Analysis, paragraph 19.
This paragraph is taken from paragraph 213_f_(13)
of MCM, 1969 (Rev.). See also United States v. Mackie, 16
U.S.C.M.A. 14, 36 C.M.R. 170 (1966) (proof of the offense for which correctional
custody imposed not required).
This paragraph is based on paragraph 213_f_(7) of
MCM, 1969 (Rev.). See also United States v. Kirksey, 6
U.S.C.M.A. 556, 20 C.M.R. 272 (1955).
This paragraph is based on paragraph 213_f_(5) of
MCM, 1969 (Rev.); Parker v. Levy, 417 U.S. 733 (1974); _
United States v. Priest_, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972); _
United States v. Gray_, 20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970); _
United States v. Harvey_, 19 U.S.C.M.A. 539, 42 C.M.R. 141 (1970).
States v. Haywood_, 41 C.M.R. 939 (A.F.C.M.R. 1969) and _United
States v. Burrow_, 26 C.M.R. 761 (N.B.R. 1958), for a discussion
of disorderly conduct in relation to the offense of breach of the peace 40c.
This paragraph is new.
See Analysis, paragraph 35.
of duties through prior wrongful overindulgence in intoxicating liquor or
drugs)
This paragraph is based on United States v. Roebuck,
8 C.M.R. 786 (A.F.B.R. 1953); United States v. Jones, 7
C.M.R. 97 (A.B.R. 1952); United States v. Nichols, 6 C.M.R.
239 (A.B.R. 1952).
This paragraph is based on United States v. Herndon,
15 U.S.C.M.A. 510, 36 C.M.R. 8 (1965); United States v. Abeyta,
12 M.J. 507 (A.C.M.R. 1981); _ United States v. Case_, 37 C.M.R.
606 (A.B.R. 1966).
The maximum punishments have been revised. Instead of three levels
($50 or less, $50 to $100, and over $100) only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in similar offenses in civilian jurisdictions.
_
2002 Amendment:_ The monetary amount affecting the maximum punishments
has been revised from $100 to $500 to account for inflation. The last change
was in 1969 raising the amount to $100. The value has also been readjusted
to realign it more closely with the division between felony and misdemeanor
penalties in civilian jurisdictions. See generally American
Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting
$500 as the value).
This paragraph is based on paragraph 213_f_(4) of
MCM, 1969 (Rev.). See also United States v. Whitaker, 13
U.S.C.M.A. 341, 32 C.M.R. 341 (1962); United States v. McCarthy,
11 U.S.C.M.A. 758, 29 C.M.R. 574 (1960).
This paragraph is based on United States v. Darisse,
17 U.S.C.M.A. 29, 37 C.M.R. 293 (1967); _United States v. Barrientes
_, 38 C.M.R. 612 (A.B.R. 1967). The term "carelessness"
was changed to "negligence" because the latter is defined in
paragraph 85c(2).
circumstances as to endanger human life)
This paragraph is based on United States v. Potter,
15 U.S.C.M.A. 271, 35 C.M.R. 243 (1965).
States v. Seeger_, 2 M.J. 249 (A.F.C.M.R. 1976).
This paragraph is based on United States v. Eagleson,
3 U.S.C.M.A. 685, 14 C.M.R. 103 (1954) (Latimer, J., concurring in the result).
Actual knowledge is an essential element of the offense rather than an affirmative
defense as is current practice. This is because actual knowledge that an
accident has occurred is the point at which the driver's or passenger's responsibilities
begin. See United States v. Waluski, 6 U.S.C.M.A. 724, 21
C.M.R. 46 (1956).
See United States v. Waluski, supra.
Introduction. This paragraph to the
Manual for Courts-Martial, although the offense of fraternization is based
on longstanding custom of the services, as recognized in the sources below.
Relationships between senior officers and junior officers and between noncommissioned
or petty officers and their subordinates may, under some circumstances, be
prejudicial to good order and discipline. This paragraph is not intended
to preclude prosecution for such offenses.
This paragraph is new and is based on _United States v.
Pitasi_, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971); _United States
Winthrop, Military Law and Precedents 41, 716 n.44 (2d ed.
1920 reprint); Staton v. Froehlke, 390 F.Supp. 503 (D.D.C.
1975); United States v. Lovejoy, 20 U.S.C.M.A. 18, 42 C.M.R.
210 (1970); United States v. Rodriquez, ACM 23545 (A.F.C.M.R.
1982); United States v. Livingston, 8 C.M.R. 206 (A.B.R.
1952). See Nelson,_ Conduct Expected of an Officer
and a Gentleman: Ambiguity_, 12 A.F. JAG. L.R. 124 (1970).
The maximum punishment for this offense is based on the maximum
punishment for violation of general orders and regulations, since some forms
of fraternization have also been punished under Article 92. As to dismissal,_
see_ Nelson, supra at 129-130.
See United States v. Free, supra.
This paragraph and is based on _United States v.
Burgin_, 30 C.M.R. 525 (A.B.R. 1961).
The maximum punishment was increased from that provided in paragraph
127_c_ of MCM, 1969 (Rev.) to expressly authorize confinement.
Cf. the second paragraph of paragraph 127_c_(2)
of MCM, 1969 (Rev.).
Sample specification 153 in Appendix 6c of MCM, 1969 (Rev.) was
revised to more correctly reflect the elements of the offense.
This paragraph is based on paragraph 213_f_(12)
of MCM, 1969 (Rev.); United States v. Kick, 7 M.J. 82 (C.M.A.
1979).
1994 Amendment: Subparagraph e was
amended to increase the maximum punishment from a bad conduct discharge,
total forfeitures, and confinement for 1 year, to a dishonorable discharge,
total forfeitures, and confinement for 3 years. This eliminated the incongruity
created by having the maximum punishment for drunken driving resulting in
injury that does not necessarily involve death exceed that of negligent
homicide where the result must be the death of the victim.
or petty officer, or an agent or official)
The elements are based on United States v. Yum,
10 M.J. 1 (C.M.A. 1980).
This paragraph is new and is based on _United States v.
Demetris_, 9 U.S.C.M.A. 412, 26 C.M.R. 192 (1958); _United
States v. Messenger_, 2 U.S.C.M.A. 21, 6 C.M.R. 21 (1952).
Indecent acts or liberties with a child was deleted
pursuant to Executive Order 13447, effective 1 October
Order 13447, effective 1 October 2007. See
Appendix 27 for the original text.
Introduction. "Obscene" was
removed from the title because it is synonymous with "indecent."
See paragraph 90c and Analysis. "Insulting"
was removed from the title based on United States v. Prince,
14 M.J. 654 (A.C.M.R. 1982); United States v. Linyear, 3
M.J. 1027 (N.C.M.R. 1977).
Gender-neutral language has been used
in this paragraph, as well as throughout this Manual. This will eliminate
any question about the intended scope of certain offenses, such as indecent
language, which may have been raised by the use of the masculine pronoun
in MCM, 1969 (Rev.). It is, however, consistent with the construction given
to the former Manual. See e.g., United States v. Respess,
7 M.J. 566 (A.C.M.R. 1979). See generally 1 U.S.C. §§ ("unless
the context indicates otherwise ... words importing the masculine gender
include the feminine as well ....").
This paragraph is new and is based on _United States v.
Knowles_, 15 U.S.C.M.A. 404, 35 C.M.R. 376 (1965); _United
States v. Wainwright_, 42 C.M.R. 997 (A.F.C.M.R. 1970). For a general
discussion of this offense, see United States v. Linyear supra.
_
1986 Amendment:_ "Provoking speeches and gestures" was
added as a lesser included offense. United States v. Linyear,
3 M.J. 1027 (N.M.C.M.R. 1977).
1995 Amendment: The
second sentence is new. It incorporates a test for "indecent language"
adopted by the Court of Military Appeals in_ United States v. French
_, 31 M.J. 57, 60 (C.M.A. 1990). The term "tends reasonably"
is substituted for the term "calculated to" to avoid the misinterpretation
that indecent language is a specific intent offense.
The maximum punishment in cases other than communication to a child
under the age of 16 has been reduced. It now parallels that for indecent
exposure.
Indecent acts with another was deleted pursuant to
Executive Order 13447, effective 1 October
Introduction. This offense is new to the
Manual for Courts-Martial. It was added to the list of Article 134 offenses
based on United States v. Sadinsky, 14 U.S.C.M.A. 563, 34
C.M.R. 343 (1964).
Introduction. This to the
Manual for Courts-Martial. It is based generally on 18 U.S.C. § 1201. _
See also Military Judges' Benchbook_, DA PAM 27-9, paragraph
3-190 (May 1982).
Kidnapping has been recognized as an offense
under Article 134 under several different theories. Appellate courts in the
military have affirmed convictions for kidnapping in violation of state law,
as applied through the third clause of Article 134 and 18 U.S.C. § 13
(see paragraph 60), _e.g., United States v. Picotte
_, 12 U.S.C.M.A. 196, 30 C.M.R. 196 (1961); in violation of Federal
law (18 U.S.C. § 1201) as applied through the third clause of
Article 134, _ e.g., United States v. Perkins_, 6 M.J. 602
(A.C.M.R. 1978); and in violation of the first two clauses of Article 134, _
e.g., United States v. Jackson_, 17 U.S.C.M.A. 580, 38 C.M.R. 378
(1968). As a result, there has been some confusion concerning pleading and
proving kidnapping in courts-martial. _See, e.g., United States v.
Smith_, 8 M.J. 522 (A.C.M.R. 1979); _United States v. DiGiulio
_, 7 M.J. 848 (A.C.M.R. 1979); _United States v. Perkins,
supra._
After _United States v. Picotte, supra
_, was decided, 18 U.S.C. § 1201 was amended to include
kidnapping within the special maritime and territorial jurisdiction of the
United States. Pub.L. 92-539, § 201, 86 Stat. 1072 (1972).
Consequently, reference to state law through 18 U.S.C. § 13 is
no longer necessary (or authorized) in most cases. _See United States
concerning kidnapping as an offense in the armed forces, as noted above.
This paragraph should eliminate such uncertainty, as well as any different
treatment of kidnapping in different places.
The elements are based on 18 U.S.C. § 1201. The language
in that statute "for ransom or reward or otherwise" has been
deleted. This language has been construed to mean that no specific purpose
is required for kidnapping. United States v. Healy, 376
U.S. 75 (1964); Gooch v. United States 297 U.S. 124 (1936); _
Gawne v. United States_, 409 F.2d 1399 (9th Cir. 1969), _
cert. denied_ 397 U.S. 943 (1970). Instead it is required that the
holding be against the will of the victim. _See Chatwin v. United
States_, 326 U.S. 455 (1946); 2 E. Devitt and C. Blackmar, _
Federal Jury Practice and Instructions_ § 43.09 (1977); _
Military Judges' Benchbook, supra_ at paragraph 3-190. _
See also Amsler v. United States_, 381 F.2d 37 (9th Cir. 1967); _
Davidson v. United States_, 312 F.2d 163 (8th Cir. 1963).
Subparagraph (1) is based on United States v. Hoog,
504 F.2d 45 (8th Cir. 1974), cert. denied, 420 U.S. 961
(1975). See also 2 E. Devitt and C. Blackmar, _ supra
_ at § 43.05.
Subparagraph (2) is based on _
United States v. DeLaMotte_, 434 F.2d 289 (2d Cir. 1970), _
cert. denied_, 401 U.S. 921 (1971); _United States v. Perkins,
supra. See generally_ 1 Am.Jur. 2d _Abduction and Kidnapping
_ § 2 (1962).
Subparagraph (3) is based on _
Chatwin v. United States, supra_; 2 E. Devitt and C. Blackmar, _
supra_ at § 43.09. _See also Hall v. United States
_, 587 F.2d 177 (5th Cir.), cert. denied, 441 U.S.
961 (1979); Military Judges' Benchbook, supra, paragraph
3-190.
Subparagraphs (4) and (5) are based on 18 U.S.C.
§ 1201; 2 E. Devitt and C. Blackmar, supra
§ § 43.05, 43.06, 43.10. _See also United States
based on _United States v. Healy, supra. See also United States v.
Smith, supra._ The second sentence in subparagraph (5) is based on _
United States v. Picotte, supra. See also United States v. Martin_,
4 M.J. 852 (A.C.M.R. 1978). The last sentence in subsection (5) is based
on 18 U.S.C. § 1201. A parent taking a child in violation of
a custody decree may violate state law or 18 U.S.C. § 1073. _
See_ 18 U.S.C.A. § 1073 Historical and Revision Note
(West Supp. 1982). See also paragraph 60_ c_(4).
The maximum punishment is based on 18 U.S.C. § 1201.
See also United States v. Jackson, supra.
stealing)
This paragraph and is based on _United States v.
Gaudet_, 11 U.S.C.M.A. 672, 29 C.M.R. 488 (1960); _United States
is not preempted by Article 121. _See United States v. Gaudet, supra.
See also_ paragraph 60.
matters in)
This paragraph and is based on _United States v.
Holt_, 12 U.S.C.M.A. 471, 31 C.M.R. 57 (1961); _United States
Linyear_, 3 M.J. 1027 (N.C.M.R. 1977). _See also Hamling
United States_, 418 U.S. 87 (1974); _Miller v. California
_, 413 U.S. 15 (1973).
"Lewd" and "lascivious" were eliminated
because they are synonymous with "obscene." See
Analysis, paragraph 90_c_.
This paragraph is based on paragraph 213_f_(6) of
MCM, 1969 (Rev.). The term "serious offense" is substituted for
"felony" to make clear that concealment of serious military
offenses, as well a serious civilian offenses, is an offense. Subsection (1)
is based on Black's Law Dictionary 902 (5th ed. 1979). _
See also United States v. Daddano_, 432 F.2d 1119 (7th Cir. 1970);
United States v. Perlstein, 126 F.2d 789 (3d Cir.), _
cert. denied_, 316 U.S. 678 (1942); 18 U.S.C. § 4.
This paragraph and is based on _United States v.
Favors_, 48 C.M.R. 873 (A.C.M.R. 1974). see also 18
U.S.C. § § 1503, 1505, 1510, 1512, 1513; _
United States v. Chodkowski_, 11 M.J. 605 (A.F.C.M.A. 1981).
1991 Amendment: The form specification
was amended by deleting the parentheses encompassing "wrongfully"
as this language is not optional, but is a required component of a legally
sufficient specification.
proceeding)
1993 Amendment: Paragraph 96_a_ and proscribes conduct that obstructs administrative proceedings. _
See generally_ 18 U.S.C. § 1505, Obstruction of proceedings before
departments, agencies, and committees. This paragraph, patterned after paragraph
96, covers obstruction of certain administrative proceedings not currently
covered by the definition of criminal proceeding found in paragraph
96_c_. This paragraph is necessary given the increased number of administrative
actions initiated in each service.
2015 Amendment. Paragraph 97 was amended to broaden the definition of prostitution and pandering to include all sexual acts, not just sexual intercourse. This amendment included the removal of the language in paragraph 97.c suggesting that engaging in sodomy for money or compensation could be charged under paragraph 51 (Article 125-Sodomy). Pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, consensual sodomy is no longer a crime under the UCMJ and Article 125 is not an appropriate charge for the consensual exchange of money for sodomy. The definition of prostitution for this offense differs from the definition of prostitution in Article 120c. Congress provided a broader definition of prostitution when criminalizing forcible pandering.
This paragraph and is based on _United States v.
Adams_, 18 U.S.C.M.A. 310, 40 C.M.R. 22 (1966); _United State
The maximum punishment for prostitution is based on 18 U.S.C. § 1384.
2007 Amendment: This paragraph has been amended. The act of compelling another person to engage in an act of prostitution with another person will no longer be punished under paragraph 97 and has been replaced by a new offense under paragraph 45. See Article 120(l) Forcible Pandering.
2005 Amendment: b. Elements. Subparagraph (2) defines the elements of the offense of patronizing a prostitute. Old subparagraphs (2) and (3) are now (3) and (4) respectively.
1998 Amendment: The addition of paragraph
97a to Part IV, Punitive Articles, makes clear that violation of parole is
an offense under Article 134, UCMJ. Both the 1951 and 1969 Manuals for
Courts-Martial listed the offense in their respective Table of Maximum Punishments.
No explanatory guidance, however, was contained in the discussion of Article
134, UCMJ in the Manual for Courts-Martial. The drafters added paragraph
97a to ensure that an explanation of the offense, to include its elements
and a sample specification, is contained in the Manual for Courts-Martial,
Part IV, Punitive Articles. _See generally United States v. Faist,
_ 41 C.M.R. 720 (ACMR 1970); United States v. Ford,
43 C.M.R. 551 (ACMR 1970).
This paragraph. It is based on 18 U.S.C. § 1622
which applies to any perjury. See 18 U.S.C. § 1621. _
See generally_ R. Perkins, Criminal Law 466-67
(2d ed. 1969). See also the Analysis, paragraph 57; _
United States v. Doughty_, 14 U.S.C.M.A. 540, 34 C.M.R. 320 (1964)(res
judicata); United States v. Smith, 49 C.M.R. 325 (N.C.M.R.
mutilating, obliterating, or destroying)
This paragraph and is based on Mil.R.Evid. 803(8), but does
not exclude certain types of records which are inadmissible under Mil. R.
Evid. 803(8) for policy reasons. See United States v. Maze,
21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) for a discussion of one of these offenses
in relation to the doctrine of preemption. See generally 18
U.S.C. § 2071.
The specification contained in Appendix 6c, no. 172, from MCM, 1969
(Rev.) was modified by deleting the word "steal" because this
would be covered by "remove."
The word "duly" has been deleted from the elements of
this offense for the same reasons explained in Analysis, paragraph 19.
Putting a person "on quarters" or other otherwise excusing
a person from duty because of illness does not of itself constitute a medical
quarantine.
Sample specification no. 173, Appendix 6c of MCM, 1969 (Rev.) was
modified based on the deletion of the word "duly," as explained
in the analysis to paragraph 19. See subparagraph b, above.
This paragraph and is based on _United States v.
Woods_, 28 M.J. 318 (C.M.A. 1989); see also Md. Ann.
Code art. 27, § 120. The definitions of "reckless"
and "wanton" have been taken from Article 111 (drunken or reckless
driving). The definition of "likely to produce grievous bodily harm"
has been taken from Article 128 (assault).
_ 2004
Amendment:_ The sample specification was amended to add the word "wantonly"
to make the sample specification consistent with the elements. The phrase
"serious bodily harm" has been changed to read "grievous
bodily harm" in the sample specification to parallel the language in
the elements. Similarly, in the Explanation, the phrase
"serious injury" was modified to read "grievous bodily harm."
The format of the sample specification was also modified to follow the format
of other sample specifications in the MCM.
Introduction. This offense to the
Manual for Courts-Martial, and is based on _United States v. Benton
, 7 M.J. 606 (N.C.M.R. 1979), pet. denied_, 8 M.J.
227 (1980).
This paragraph is based on _United States v. Benton, supra.
See also United States v. Oakley_, 7 U.S.C.M.A. 733, 23 C.M.R. 197
(1957).
The maximum punishment is based on _United States v. Oakley,
supra._
1990 Amendment: The offense
of "requesting the commission of an offense"" was deleted. Solicitation
of another to commit an offense, whether prosecuted under Article 82 or 134,
UCMJ, is a specific intent offense. _See United States v. Mitchell
_, 15 M.J. 214 (C.M.A. 1983). The preemption doctrine precludes the
creation of a lesser included offense of solicitation which does not require
specific intent. See United States v. Taylor, 23 M.J. 314
(C.M.A. 1987).
Elements. The word "duly" has
been deleted from the elements of this offense, for the same reasons explained
in Analysis, paragraph 19.
This paragraph and is based on paragraph 20_b_ ,
126_g_, 131_c_, and 174_b_ of
MCM, 1969 (Rev.). See also United States v. Haynes, 15
U.S.C.M.A. 122, 35 C.M.R. 94 (1964).
Sample specification no. 175, appendix 6c of MCM, 1969 (Rev.) was
modified based on the deletion of the word "duly," as explained
in the analysis of paragraph 19. See subparagraph b, above.
property to prevent)
Introduction. This offense. It is
based on 18 U.S.C. § 2232. _See generally United States
Gibbons_, 463 F.2d 1201 (3d Cir. 1972); _United States
Bernstein_, 287 F.Supp. 84 (S.D. Fla. 1968); _United States
Fishel_, 12 M.J. 602 (A.C.M.R. 1981), pet denied,
13 M.J. 20. See also the opinion in _United States
The second sentence is based on_ United States v. Gibbons,
supra. Cf. United States v. Ferrone_, 438 F.2d 381 (3d Cir.),_
cert. denied_, 402 U.S. 1008 (1971).
The maximum punishment is based on 18 U.S.C. § 2232.
1995 Amendment: This offense is based on paragraph
183_ a_ of MCM, U.S. Army, 1949; _United States v.
Ramsey_, 35 M.J. 733 (A.C.M.R. 1992), aff'd, 40
M.J. 71 (C.M.A. 1994); United States v. Taylor, 38 C.M.R.
393 (C.M.A. 1968); _ see generally_ TJAGSA Practice Note, _
Confusion About Malingering and Attempted Suicide_, The Army Lawyer,
June 1992, at 38.
1995 Amendment: The maximum punishment for subsection
morale. The maximum punishment reflects the range of the effects of the
injury, both in degree and duration, on the ability of the accused to perform
work, duty, or service. The maximum punishment for subsection (1) is equivalent
to that for offenses of desertion, missing movement through design, and certain
violations of orders. The maximum punishment for subsection (2) is less
than the maximum punishment for the offense of malingering under the same
circumstances because of the absence of the specific intent to avoid work,
duty, or service. The maximum punishment for subsection (2) is equivalent
to that for nonaggravated offenses of desertion, willfully disobeying a superior
commissioned officer, and nonaggravated malingering by intentional self-inflicted
injury.
1995 Amendment: See appendix 4, paragraph 177
of MCM, U.S. Army, 1949. Since incapacitation to perform duties is not an
element of the offense, language relating to "unfitting himself for
the full performance of military service" from the 1949 MCM has been
omitted. The phrase "willfully injure" has been changed to read
"intentionally injure" to parallel the language contained in
the malingering specification under Article 115.
This paragraph. See Analysis, paragraph
13 and Analysis, paragraph 38. The definition of "loiter" is
taken from United States v. Muldrow, 48 C.M.R. 63, 65n.
1 (A.F.C.M.R. 1973).
The maximum punishment for loitering or wrongfully sitting on post
by a sentinel or lookout was increased because of the potentially serious
consequences of such misconduct. Cf. Article 113.
See United States v. Mitchell, 15 M.J. 214 (C.M.A.
1983); the Analysis, paragraph 6. See also paragraph 101.
See the Analysis, paragraph 6.
See United States v. Benton, 7 M.J. 606 (N.C.M.R.
1979), pet. denied, 8 M.J. 227 (1980).
_1990 Amendment:
_ Listing of "Article 134 - Requesting another to commit
an offense, wrongful communication of language" as a lesser included
offense of soliciting another to commit an offense was deleted in conjunction
with the deletion of such a request as a substantive offense. _See
United States v. Taylor_, 23 M.J. 314 (C.M.A. 1987); and, the Analysis,
paragraph 101.
See United States v. Benton, supra.
1986 Amendment: The Committee considered maximum imprisonment
for 5 years inappropriate for the offense of solicitation to commit espionage
under new Article 106a. A maximum punishment authorizing imprisonment for
life is more consistent with the serious nature of the offense of espionage.
concealing)
This paragraph is based on paragraph 213_f_(14)
of MCM, 1969 (Rev.). and United States v. Cartwright, 13
M.J. 174 (C.M.A. 1982); United States v. Ford, 12 U.S.C.M.A.
3, 30 C.M.R. 3 (1960). See United States v. Rokoski, 30
C.M.R. 433 (A.B.R. 1960) concerning knowledge. _See also United States
this offense in general.
The maximum punishments have been revised. Instead of three levels
(less than $50, $50 to $100, and over $100) only two are used. This is simpler
and conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in civilian jurisdictions.
_
2002 Amendment:_ The monetary amount affecting the maximum punishments
has been revised from $100 to $500 to account for inflation. The last change
was in 1969 raising the amount to $100. The value has also been readjusted
to realign it more closely with the division between felony and misdemeanor
penalties in civilian jurisdictions. See generally American
Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980) (suggesting
$500 as the value).
This paragraph and is based on _Military Judges'
Benchbook_, DA PAM 27-9, paragraph 3-180 (May 1982).
This paragraph and is based on _United States v.
Kirsch_, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). _See also United
States v. Quarles_, 50 C.M.R. 514 (N.C.M.R. 1975).
"Duly appointed" which appeared in front of the words
"board of officers" in sample specification no. 174, Appendix
6 of MCM, 1969 (Rev.) was deleted. This is because all of the bodies under
this paragraph must be properly convened or appointed. Summary courts-martial
were expressly added to the sample specification to make clear that this
offense may occur before a summary court-martial.
Introduction. This offense to the
Manual for Courts-Martial. It is based generally on 18 U.S.C. § 844(e)
and on Military Judges' Benchbook, DA PAM 27-9, paragraph
3-189 (May 1982). Bomb hoax has been recognized as an offense under
clause 1 of Article 134. United States v. Mayo, 12 M.J.
286 (C.M.R. 1982).
This paragraph is based on _Military Judges' Benchbook,
supra_ at paragraph 3-189.
2005 Amendment: This paragraph has been expanded to state the various means by which a threat or hoax is based. Whereas explosives were the instruments most commonly used in the past, new types of weapons have developed. Included in the new types of methods by which a threat or hoax is based are: weapons of mass destruction; chemical agents, substances, or weapons; biological agents, substances, or weapons; and hazardous materials. The definitions used in this amendment are based on the following U.S. Code provisions: 40 U.S.C. § 2302 (weapons of mass destruction); 22 U.S.C. § 6701 (chemical weapons); 50 U.S.C. § 1520a (biological agents); and 49 U.S.C. § 5301 (hazardous material).
The maximum punishment is based on 18 U.S.C. § 844(e).
2005 Amendment: This amendment increases the maximum punishment currently permitted under paragraph 109 from five years to ten years. Ten years is the maximum period of confinement permitted under 18 U.S.C. § 844(e), the U.S. Code section upon which the original paragraph 109 is based.
This paragraph is taken from paragraph 213_f_(10)
of MCM, 1969 (Rev.). See also United States v. Gilluly,
13 U.S.C.M.A. 458, 32 C.M.R. 458 (1963); _United States v. Frayer
_, 11 U.S.C.M.A. 600, 29 C.M.R. 416 (1960).
This paragraph and is based on _United States v.
Breen_, 15 U.S.C.M.A. 658, 36 C.M.R. 156 (1966); _United States
States v. Love_, 4 U.S.C.M.A. 260, 15 C.M.R. 260 (1954). _
See also United States v. Wickersham_, 14 M.J. 404 (C.M.A. 1983)
(storage area); United States v. Taylor, 12 U.S.C.M.A. 44,
30 C.M.R. 44 (1960) (aircraft); United States v. Sutton,
21 U.S.C.M.A. 344, 45 C.M.R. 118 (1972) (tracked vehicle); _United
States v. Selke_, 4 M.J. 293 (C.M.A. 1978) (summary disposition)
(Cook, J., dissenting).
This paragraph and is based on _United States v.
Tobin_, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968); _United States
States v. Thompson_, 3 U.S.C.M.A. 620, 14 C.M.R. 38 (1954). Subsection
1977), pet. denied, 3 M.J. 184 (1977).
This paragraph is based on the legislative history of Article 15,
both as initially enacted and as modified in 1962. _See generally
_ H.R.Rep. No. 491, 81st Cong., 1st Sess. 14-15 (1949); S.Rep.
No. 1911, 87th Cong., 2d Sess. (1962).
Subparagraph (1) is based on paragraph 129_a_ of
MCM, 1969 (Rev.). Subparagraph (2) is based on the last sentence of paragraph
129_a_ of MCM, 1969 (Rev.) and on service regulations. _
See, e.g._, AR 27-10, para. 3-4 b (1
Sep. 1982); JAGMAN sec. 0101. Cf. Article 37. Subparagraph
This paragraph is derived from paragraph 128_b_ of
MCM, 1969 (Rev.), service regulations concerning "minor offenses"
(see, e.g., AR 27-10, para. 3-3_d_
(1 Sep. 1982); AFR 111-9, para. 3_a_(3) (31 Aug. 1979));
United States v. Fretwell, 11 U.S.C.M.A. 377, 29 C.M.R.
193 (1960). The intent of the paragraph is to provide the commander with
enough latitude to appropriately resolve a disciplinary problem. Thus, in
some instances, the commander may decide that nonjudicial punishment may
be appropriate for an offense that could result in a dishonorable discharge
or confinement for more than 1 year if tried by general court-martial, e.g.,
failure to obey an order or regulation. On the other hand, the commander
could refer a case to a court-martial that would ordinarily be considered
at nonjudicial punishment, e.g., a short unauthorized absence, for a servicemember
with a long history of short unauthorized absences, which nonjudicial punishment
has not been successful in correcting.
This subparagraph is taken from the first paragraph of paragraph
128_d_ of MCM, 1969 (Rev.). Note that what is prohibited is
the service of punishment twice. Where nonjudicial punishment is set aside,
this does not necessarily prevent reimposition of punishment and service
of punishment not previously served.
This paragraph is taken from the second paragraph of paragraph
128_d_ of MCM, 1969 (Rev.).
This paragraph is based on the guidance for court-martial offenses,
found in paragraph 30g and 33_h_ of MCM, 1969 (Rev.).
This paragraph restates the requirements of Article 43(c) regarding
nonjudicial punishment.
This paragraph is derived from service regulations (_see,
e.g._, AR 27-10, chap. 4 (1 Sep. 1982)) and is intended to
preclude the possibility of a servicemember being punished by separate jurisdictions
for the same offense, except in unusual cases.
measures.
This paragraph is derived from paragraph 128_c_ of
MCM, 1969 (Rev.) and service regulations. See, e.g., AR 27-10,
para. 3-4 (1 Sep. 1982).
2005 Amendment: Subsection (h) is new. This subsection was added to clarify that nonjudicial punishment proceedings conducted in a combatant or joint command are to be conducted in accordance with the implementing regulations and procedures of the service of which the accused is a member.
This paragraph is taken from paragraph 130 of MCM, 1969 (Rev.).
This paragraph is taken from paragraph 128_a_ of
MCM, 1969 (Rev.) and service regulations. See, e.g., AR
27-10, para. 3-7 (1 Sep. 1982); JAGMAN sec. 0101; AFR 111-9,
para. 3 (31 Aug. 1979). Additional guidance in this area is left to Secretarial
regulation, in accordance with the provisions of Article 15(a).
2005 Amendment: Subsection (2) was amended to clarify the authority of the commander of a joint command to impose nonjudicial punishment upon service members of the joint command.
This paragraph is taken from Article 15(a) and paragraph 132
of MCM, 1969 (Rev.).
This paragraph is based on paragraph 133 of MCM, 1969 (Rev.)
and service regulations. It provides a uniform basic procedure for nonjudicial
punishment for all the services. Consistent with the purposes of nonjudicial
punishment (see S.Rep. No. 1911, 87th Cong. 2d Sess. 4 (1962))
it provides due process protections and is intended to meet the concerns
expressed in the Memorandum of Secretary of Defense Laird, 11 January 1973.
See also United States v. Mack, 9 M.J. 300, 320-21
(C.M.A. 1980). The Report of the Task Force on the Administration of Military
Justice in the Armed Forces, 1972, and GAO Report to the Secretary of Defense,
_Better Administration of Military Article 15 Punishments for Minor
Offenses is Needed_, September 2, 1980, were also considered.
Note
that there is no right to consult with counsel before deciding whether to
demand trial by court-martial. Unless otherwise prescribed by the Secretary
concerned, the decision whether to permit a member to consult with counsel
is left to the commander. In United States v. Mack, supra, records
of punishments where such opportunity was not afforded (except when the member
was attached to or embarked in a vessel) were held inadmissible in courts-martial.
_
1986 Amendment:_ Subparagraph (c)(2) was amended to state clearly
that a servicemember has no absolute right to refuse to appear personally
before the person administering the nonjudicial punishment proceeding. In
addition, Part V was amended throughout to use the term "nonjudicial
punishment authority" in circumstances where the proceeding could be
administered by a commander, officer in charge, or a principal assistant
to a general court-martial convening authority or general or flag officer.
This paragraph is taken from paragraph 131 of MCM, 1969 (Rev.).
Subparagraph b(2)(b)4 is also based on S.Rep. 1911, 87th Cong., 1st Sess.
7 (1962). Subparagraph c(4) is also based on id. at 6-7
and Hearings Before a Subcomm. of the House Comm. on Armed Services, 87th Cong., 1st Sess. 33 (1962). Detention of pay was deleted
as a punishment because under current centralized pay systems, detention
of pay is cumbersome, ineffective, and seldom used. The concept of apportionment,
authorized in Article 15(b) and set forth in paragraph 131_d_ of
MCM, 1969 (Rev.), was eliminated as unnecessary and confusing. Accordingly,
the Table of Equivalent Punishments is no longer necessary.
Subparagraph
d, in concert with the elimination of the apportionment concept, will ease
the commanders burden of determining an appropriate punishment and make the
implementation of that punishment more efficient and understandable.
_
1987 Amendment:_ Subparagraph e was redesignated as subparagraph
g and new subparagraphs e and f were added to implement the amendments to
Articles 2 and 3, UCMJ, contained in the "Military Justice Amendments
of 1986," tit. VIII, § 804, National Defense Authorization
Act for fiscal year 1987, Pub. L. No. 99-661, 100 Stat. 3905 (1986).
_
1990 Amendment:_ Subsection (c)(8) was amended to incorporate the
statutory expansion of jurisdiction over reserve component personnel provided
in the Military Justice Amendments of 1990, tit. XIII, § 1303,
National Defense Authorization Act of Fiscal Year 1990, Pub. L. 101-189,
103 Stat. 1352 (1989).
2007 Amendment: Paragraph 5.c.(8) was amended because Hardship Duty Pay (HDP) superseded Foreign Duty Pay (FDP) on 3 February 1999. HDP is payable to members entitled to basic pay. The Secretary of Defense has established that HDP will be paid to members (a) for performing specific missions, or (b) when assigned to designated areas.
This paragraph is taken from Article 15, paragraph 134 of
MCM 1969 (Rev.), and service regulations. See e.g., AR 27-10,
paras. 3-23 through 3-28 (1 Sep. 1982); JAGMAN sec. 0101; AFR
111-9, para 7 (31 Aug 1979). Subparagraph a dealing with suspension
was expanded to: require a violation of the code during the period of suspension
as a basis for vacation action, and to explain that vacation action is not
in itself nonjudicial punishment and does not preclude the imposition of
nonjudicial punishment for the offenses upon which the vacation action was
based. Subparagraph a(4) provides a procedure for vacation of suspended nonjudicial
punishment. This procedure parallels the procedure found sufficient to make
admissible in courts-martial records of vacation of suspended nonjudicial
punishment. United States v. Covington, 10 M.J. 64 (C.M.A.
1980).
1990 Amendment: A new subsection a(4)
was added to permit punishment imposed under Article 15 to be suspended based
on conditions in addition to violations of the UCMJ. This affords the same
flexibility given to authorities who suspend punishment adjudged at court-martial
under R.C.M. 1108(c). Experience has demonstrated the necessity and utility
of such flexibility in the nonjudicial punishment context.
This paragraph is taken from paragraph 135 of MCM, 1969 (Rev.)
and service regulations dealing with appeals. See AR 27-10,
paras. 3-29 through 3-35 (1 Sep. 1982); JAGMAN 0101; AFR 111-9,
para. 8 (31 Aug. 1981). Subparagraph (d) requires an appeal to be filed
within 5 days or the right to appeal will be waived, absent unusual circumstances.
This is a reduction from the 15 days provided for in paragraph 135 and is
intended to expedite the appeal process. Subparagraph f(2) is intended to
promote sound practice, that is, the superior authority should consider many
factors when reviewing an appeal, and not be limited to matters submitted
by the appellant or the officer imposing the punishment. Subparagraph f(3)
provides for "additional proceedings" should a punishment be
set aside due to a procedural error. This is consistent with court-martial
practice and intended to ensure that procedural errors do not prevent appropriate
disposition of a disciplinary matter.
This paragraph is taken from Article 15(g) and paragraph 133c
of MCM, 1969 (Rev.).
The Executive Orders listed in Appendix 25, of the Manual, as updated below through 2011, have been removed from the Manual for the 2012 edition. This page serves as a substitute in order to reduce the overall size of the revised manual. Each Executive Order is available online from the Joint Service Committee's website at the following address: http://www.dod.gov/dodgc/jsc_business.html.
49 Fed Reg. 17152 (Apr. 23, 1984)
President Ronald W. Reagan (Apr. 13, 1984)
NOTE. E.O 12473 is in 4 Parts and created the 1984 Manual for Courts-Martial that the following Executive Orders amend. This E.O. is not provided on the JSC website because the file is too large.
49 Fed. Reg. 28825 (July 17, 1984)
_President Ronald W. Reagan (July 17, 1984)
_
51 Fed. Reg. 6497 (Feb. 25, 1986)
_President Ronald W. Reagan (Feb. 19, 1986)
_
52 Fed. Reg. 7103 (Mar. 9, 1987)
_President Ronald W. Reagan (Mar. 3, 1987)
_
55 Fed. Reg. 11353 (Mar. 27, 1990)
_President George H.W. Bush (Mar. 23, 1990)
_
56 Fed. Reg. 30284 (July 1, 1991)
_President George H.W. Bush (June 27, 1991)
_
58 Fed. Reg. 69153 (Dec. 29, 1993)
_President William J. Clinton (Dec. 23, 1993)
_
59 Fed. Reg. 59075 (Nov. 15, 1994)
_President William J. Clinton (Nov. 10, 1994)
_
60 Fed. Reg. 26647 (May 17, 1995)
_President William J. Clinton (May 12, 1995)
_
63 Fed. Reg. 30065 (June 2, 1998)
_President William J. Clinton (May 27, 1998)
_
64 Fed. Reg. 55115 (Oct. 12, 1999)
_President William J. Clinton (Oct. 6, 1999)
_
67 Fed. Reg. 18773 (Apr. 17, 2002)
_President George W. Bush (Apr. 11, 2002)
_
69 Fed. Reg. 71333 (Dec. 8, 2004)
_President George W. Bush (Dec. 3, 2004)
_
70 Fed. Reg. 60697 (Oct. 17, 2005)
_President George W. Bush (Oct. 14, 2005)
_
72 Fed. Reg. 20213 (Apr. 23, 2007)
_President George W. Bush (Apr. 18, 2007)
_
72 Fed. Reg. 56179 (Oct. 2, 2007)
_President George W. Bush (Sep. 28, 2007)
_
73 Fed. Reg. 43827 (July 28, 2008)
_President George W. Bush (July 24, 2008)
_
75 Fed. Reg. 54263 (Sep. 3, 2010)
_President Barack H. Obama (Aug 31, 2010)
_
76 Fed. Reg. 78451 (Dec. 16, 2011)
_President Barack H. Obama (Dec. 13, 2011)
_
The punitive articles contained in this appendix were replaced or superseded by changes to Article 120, Uniform Code of Military Justice, contained in the National Defense Authorization Act for Fiscal Year 2006. Article 120 was amended again by the National Defense Authorization Act for Fiscal Year 2012. Each version of Article 120 is located in a different part of this Manual. For offenses committed prior to 1 October 2007, the relevant sexual offense provisions and analysis are contained in this appendix and listed below. For offenses committed during the period
1 October 2007 through 27 June 2012, the relevant sexual offense provisions and analysis are contained in Appendix 28. For offenses committed on or after 28 June 2012, the relevant sexual offense provisions are contained in Part IV of this Manual (Articles 120, 120b, and 120c).
Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.
Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person-
who is not his or her spouse; and
who has not attained the age of sixteen years, is guilty of carnal knowledge and shall be punished as a court-martial may direct.
(d)(1) In a prosecution under subsection (b), it is an affirmative defense that-
years; and
That the accused committed an act of sexual intercourse; and
That the act of sexual intercourse was done by force and without consent.
That the accused committed an act of sexual intercourse with a certain person;
That the person was not the accused's spouse; and
(c)(1) That at the time of the sexual intercourse the person was under the age of 12; or
Rape is sexual intercourse by a person, executed by force and without consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense.
Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual consent, although obtained by fraud, the act is not rape, but if to the accused's knowledge the victim is of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of understanding the nature of the act is not consent.
See Mil. R. Evid. 412 concerning rules of evidence relating to an alleged rape victim's character.
"Carnal knowledge" is sexual intercourse under circumstances not amounting to rape, with a person who is not the accused's spouse and who has not attained the age of 16 years. Any penetration, however slight, is sufficient to complete the offense. It is a defense, however, which the accused must prove by a preponderance of the evidence, that at the time of the act of sexual intercourse, the person with whom the accused committed the act of sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this same person was at least 16 years of age.
Article 128-assault; assault consummated by a battery
Article 134-assault with intent to commit rape
Article 134-indecent assault
Article 80-attempts
Article 120(b)-carnal knowledge
Article 134-indecent acts or liberties with a person under 16
Article 80-attempts
Death or such other punishment as a court-martial may direct.
Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 20 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.
In that (personal jurisdiction data), did, (at/on board - location) (subject - matter
jurisdiction data, if required), on or about , rape, (a person under the age of
In that (personal jurisdiction data), did, (at/on board - location) (subject - matter
jurisdiction data, if required), on or about , commit the offense of carnal knowledge
with , (a person under the age of 12) (a person who attained the age of 12 but was
under the age of 16).
See paragraph 60.
That the accused assaulted a certain person not the spouse of the accused in a certain manner;
That the acts were done with the intent to gratify the lust or sexual desires of the accused; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
See paragraph 54c for a discussion of assault. Specific intent is an element of this offense.
For a definition of "indecent", see paragraph 90_c_.
Article 128-assault consummated by a battery; assault
Article 134-indecent acts
Article 80-attempts
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about , commit an indecent assault upon a person not his/her wife/husband by , with intent to gratify his/her (lust) (sexual desires).
See paragraph 60.
That the accused committed a certain act upon or with the body of a certain person;
That the person was under 16 years of age and not the spouse of the accused;
That the act of the accused was indecent;
That the accused committed the act with intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
That the accused committed a certain act;
That the act amounted to the taking of indecent liberties with a certain person;
That the accused committed the act in the presence of this person;
That this person was under 16 years of age and not the spouse of the accused;
That the accused committed the act with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the accused, the victim, or both; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Lack of consent by the child to the act or conduct is not essential to this offense; consent is not a defense.
When a person is charged with taking indecent liberties, the liberties must be taken in the physical presence of the child, but physical contact is not required. Thus, one who with the requisite intent exposes one's private parts to a child
under 16 years of age may be found guilty of this offense. An indecent liberty may consist of communication of indecent language as long as the communication
is made in the physical presence of the child.
See paragraph 89c and 90c.
Article 134-indecent acts with another
Article 128-assault; assault consummated by a battery
Article 80-attempts
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.
In that (personal jurisdiction data), did, (at/on board - location) (subject - matter
jurisdiction data, if required), on or about , (take (indecent) liberties with) (commit an indecent act (upon) (with) the body of) , a (female) (male) under 16 years of age, not the (wife) (husband) of the said , by (fondling (her) (him) and placing his/her hands upon (her) (his) leg and private parts) ( ), with intent to (arouse) (appeal to) (gratify) the (lust) (passion) (sexual desires) of the said ( ).
See paragraph 60.
That the accused exposed a certain part of the accused's body to public view in an indecent manner;
That the exposure was willful and wrongful; and
That, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
"Willful" means an intentional exposure to public view. Negligent indecent exposure is not punishable as a violation of the code. See paragraph 90c concerning "indecent."
Article 80-attempts
Bad - conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about , while (at a barracks window) ( ) willfully and wrongfully expose in an indecent manner to public view his or her .
See paragraph 60.
That the accused committed a certain wrongful act with a certain person;
That the act was indecent; and
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
"Indecent" signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations.
Article 80-attempts
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about , wrongfully commit an indecent act with by .
[Note: The analysis below was removed from Appendix 23 and pertains to Article 120 and other punitive articles applicable to sexual offenses as they existed prior to the 2007 Amendment. The analysis was inserted into this appendix to accompany the version of Article 120, and other punitive sexual offense articles, applicable to offenses committed before 1 October 2007. For offenses committed during the period 1 October 2007 through 27 June 2012, analysis related to Article 120 is contained in Appendix 27. For offenses committed on or after 28 June 2012, analysis related to Article 120, 120b, and 120c is contained in Appendix 23.]
2004 Amendment: Paragraph 45(b)(2) was amended
to add two distinct elements of age based upon the 1994 amendment to paragraph
45(e). See also concurrent change to R.C.M. 307(c)(3) and accompanying analysis.
This paragraph is based on paragraph 199 of MCM, 1969 (Rev.). The
third paragraph of paragraph 199(a) was deleted as unnecessary. The third
paragraph of paragraph 199(b) was deleted based on the preemption doctrine.
See United States v. Wright, 5 M.J. 106 (C.M.A. 1978); _
United States v. Norris_, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). _
Cf. Williams v. United States_, 327 U.S. 711 (1946) (scope of preemption
doctrine). The Military Rules of Evidence deleted the requirement for corroboration
of the victim's testimony in rape and similar cases under former paragraph
153 a of MCM, 1969. See Analysis, Mil.
R. Evid. 412.
Carnal knowledge was deleted as a lesser included offense of rape
in view of the separate elements in each offense. Both should be separately
pleaded in a proper case. See generally United States v. Smith,
7 M.J. 842 (A.C.M.R. 1979).
1993 Amendment. The
amendment to para 45_d_(1) represents an administrative change
to conform the Manual with case authority. Carnal knowledge is a lesser included
offense of rape where the pleading alleges that the victim has not attained
the age of 16 years. _ See United States v. Baker_, 28 M.J.
900 (A.C.M.R. 1989); _ United States v. Stratton_, 12 M.J.
998 (A.F.C.M.R. 1982), pet. denied, 15 M.J. 107 (C.M.A.
1983); United States v. Smith, 7 M.J. 842 (A.C.M.R. 1979).
1994 Amendment. Subparagraph _
e_ was amended by creating two distinct categories of carnal knowledge
for sentencing purposes -- one involving children who had attained the age
of 12 years at the time of the offense, now designated as subparagraph e(2),
and the other for those who were younger than 12 years. The latter is now
designated as subparagraph e(3). The punishment for the older children was
increased from 15 to 20 years confinement. The maximum confinement for carnal
knowledge of a child under 12 years was increased to life. The purpose for
these changes is to bring the punishments more in line with those for sodomy
of a child under paragraph 51e of this part and with the Sexual Abuse Act
of 1986, 18 U.S.C. §§ 2241-2245. The alignment of
the maximum punishments for carnal knowledge with those of sodomy is aimed
at paralleling the concept of gender-neutrality incorporated into the
Sexual Abuse Act.
1995 Amendment. The offense
of rape was made gender neutral and the spousal exception was removed under
Article 120(a). National Defense Authorization Act for Fiscal Year 1993,
Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).
Rape
may "be punished by death" only if constitutionally permissible.
In Coker v. Georgia, 433 U.S. 584 (1977), the Court held
that the death penalty is "grossly disproportionate and excessive punishment
for the rape of an adult woman," and is "therefore forbidden
by the Eighth Amendment as cruel and unusual punishment." _
Id._ at 592 (plurality opinion). Coker, however,
leaves open the question of whether it is permissible to impose the death
penalty for the rape of a minor by an adult. See Coker,
433 U.S. at 595. See Leatherwood v. State, 548 So.2d 389
(Miss. 1989) (death sentence for rape of minor by an adult is not cruel and
unusual punishment prohibited by the Eighth Amendment). _But see Buford
disproportionate for sexual assault of a minor by an adult and consequently
is forbidden by Eighth Amendment as cruel and unusual punishment).
_
1998 Amendment:_ In enacting section 1113 of the National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
462 (1996), Congress amended Article 120, UCMJ, to make the offense gender
neutral and create a mistake of fact as to age defense to a prosecution for
carnal knowledge. The accused must prove by a preponderance of the evidence
that the person with whom he or she had sexual intercourse was at least 12
years of age, and that the accused reasonably believed that this person was
at least 16 years of age.
2004 Amendment: Paragraph 45(f)(2) was amended
to aid practitioners in charging the two distinct categories of carnal knowledge
created in 1994. For the same reason paragraph 45(f)(1) was amended to allow
for contingencies of proof because carnal knowledge is a lesser-included offense
of rape if properly pleaded. _ See also_ concurrent change
to R.C.M.307(c)(3) and accompanying analysis.
This paragraph is based on paragraph 213_f_(2) of
MCM, 1969 (Rev.). See United States v. Caillouette, 12
U.S.C.M.A. 149, 30 C.M.R. 149 (1961) regarding specific intent. _See
also United States v. Headspeth_, 2 U.S.C.M.A. 635, 10 C.M.R. 133
(1953).
Gender-neutral language has been used in this paragraph,
as well as throughout this Manual. This will eliminate any question about
the intended scope of certain offenses, such as indecent assault such as
may have been raised by the use of the masculine pronoun in MCM, 1969 (Rev.).
It is, however, consistent with the construction given to the former Manual. _
See, e.g., United States v. Respess_, 7 M.J. 566 (A.C.M.R. 1979)._
See generally_ 1 U.S.C. § 1 ("unless the context
indicates otherwise ... words importing the masculine gender include
the feminine as well ....").
See United States v. Thacker, 16 U.S.C.M.A. 408,
37 C.M.R. 28 (1966); United States v. Jackson, 31 C.M.R.
738 (A.F.B.R. 1962).
2007 Amendment: This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (e) Aggravated Sexual Contact, (h) Abusive Sexual Contact, and (m) Wrongful Sexual Contact.
This paragraph is based on paragraph 213_f_(3) of
MCM, 1969 (Rev.). See also United States v. Knowles, 15
U.S.C.M.A. 404, 35 C.M.R. 376 (1965); United States v. Brown,
3 U.S.C.M.A. 454, 13 C.M.R. 454, 13 C.M.R. 10 (1953); _United States
9 U.S.C.M.A. 813, 25 C.M.R. 486 (1958). "Lewd" and "lascivious"
were deleted because they are synonymous with indecent. _See id. See
also_ paragraph 90c.
2007 Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (g) Aggravated Sexual Contact with a Child, (i) Abusive Sexual Contact with a Child, and (j) Indecent Liberty with Child.
This paragraph and is based on _United States v.
Manos_, 8 U.S.C.M.A. 734, 25 C.M.R. 238 (1958). _See also United
States v. Caune_, 22 U.S.C.M.A. 200, 46 C.M.R. 200 (1973); _
United States v. Conrad_, 15 U.S.C.M.A. 439, 35 C.M.R. 411 (1965).
The maximum punishment has been increased to include a bad-conduct
discharge. Indecent exposure in some circumstances (e.g., in front of children,
but without the intent to incite lust or gratify sexual desires necessary
for indecent acts or liberties) is sufficiently serious to authorize a punitive
discharge.
2007 Amendment: This paragraph has been replaced in its entirety by paragraph 45. See Article 120(n) Indecent Exposure.
This and is based on _United States v.
Holland_, 12 U.S.C.M.A. 444, 31 C.M.R. 30 (1961); _United States
States v. Sanchez_, 11 U.S.C.M.A. 216, 29 C.M.R. 32 (1960); _
United States v. Johnson_, 4 M.J. 770 (A.C.M.R. 1978). "Lewd"
and "lascivious" have been deleted as they are synonymous with
"indecent." See id.
THROUGH 27 JUNE 2012
The punitive articles contained in this appendix were replaced or superseded by Articles 120, 120b, and 120c, Uniform Code of Military Justice, as amended or established by the National Defense Authorization Act for Fiscal Year 2012. Article 120 was previously amended by the National Defense Authorization Act for Fiscal Year 2006. Each version of Article 120 is located in a different part of this Manual. For offenses committed prior to 1 October 2007, the relevant sexual offense provisions are contained in Appendix 27. For offenses committed during the period 1 October 2007 through 27 June 2012, the relevant sexual offense provisions are contained in this appendix and listed below. For offenses committed on or after 28 June 2012, the relevant sexual offense provisions are contained in Part IV of this Manual (Articles 120, 120b, and 120c).
Any person subject to this chapter who causes another person of any age to engage in a sexual act by-
** using force against that other person;**
** causing grievous bodily harm to any person;**
** threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; **
rendering another person unconscious; or
**administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct; is guilty of rape and shall be punished as a court-martial may direct.
**
Any person subject to this chapter who-
engages in a sexual act with a child who has not attained the age of 12 years; or
** engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years; is guilty of rape of a child and shall be punished as a court-martial may direct.
**
Any person subject to this chapter who-
** threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or**
causing bodily harm; or
appraising the nature of the sexual act;
declining participation in the sexual act; or
communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.
(d) Aggravated sexual assault of a child.
Any person subject to this chapter who engages in a sexual act with a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-martial may direct.
(e) Aggravated sexual contact.
Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.
(f) Aggravated sexual abuse of a child.
Any person subject to this chapter who engages in a lewd act with a child is guilty of aggravated sexual abuse of a child and shall be punished as a court-martial may direct.
(g) Aggravated sexual contact with a child.
Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.
(h) Abusive sexual contact.
Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.
(i) Abusive sexual contact with a child.
Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (d) (aggravated sexual assault of a child) had the sexual contact been a sexual act, is guilty of abusive sexual contact with a child and shall be punished as a court-martial may direct.
(j) Indecent liberty with a child.
Any person subject to this chapter who engages in indecent liberty in the physical presence of a child-
with the intent to arouse, appeal to, or gratify the sexual desire of any person; or
with the intent to abuse, humiliate, or degrade any person; is guilty of indecent liberty with a child and shall be punished as a court-martial may direct.
(k) Indecent act.
** Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.**
(l) Forcible pandering.
** Any person subject to this chapter who compels another person to engage in an act of prostitution with another person to be directed to said person is guilty of forcible pandering and shall be punished as a court-martial may direct.**
(m) Wrongful sexual contact.
** Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person's permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct.**
(n) Indecent exposure.
** Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall be punished as a court-martial may direct.**
(o) Age of child.
(1) Twelve years.
In a prosecution under subsection (b) (rape of a child), subsection (g) (aggravated sexual contact with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years.
(2) Sixteen years.
** In a prosecution under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sexual abuse of a child), subsection (i) (abusive sexual contact with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 16 years. Unlike in paragraph (1), however, it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years.**
** In a prosecution under this section, in proving that the accused made a threat, it need not be proven that the accused actually intended to carry out the threat.**
** In a prosecution under paragraph (2) of subsection (c) (aggravated sexual assault), or under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sexual abuse of a child), subsection (i) (abusive sexual contact with a child), subsection (j) (indecent liberty with a child), subsection (m) (wrongful sexual contact), or subsection (n) (indecent exposure), it is an affirmative defense that the accused and the other person when they engaged in the sexual act, sexual contact, or sexual conduct were married to each other.**
** For purposes of this subsection, a marriage is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and the other person as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.**
** Paragraph (1) shall not apply if the accused's intent at the time of the sexual conduct is to abuse, humiliate, or degrade any person.**
** Lack of permission is an element of the offense in subsection (m) (wrongful sexual contact). Consent and mistake of fact as to consent are not an issue, or an affirmative defense, in a prosecution under any other subsection, except they are an affirmative defense for the sexual conduct in issue in a prosecution under subsection (a) (rape), subsection (c) (aggravated sexual assault), subsection (e) (aggravated sexual contact), and subsection (h) (abusive sexual contact).**
** The enumeration in this section of some affirmative defenses shall not be construed as excluding the existence of others.**
** In this section:**
** The term "sexual act" means-**
contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
** the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.**
** The term "sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.**
** The term "grievous bodily harm" means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18.**
** The term "dangerous weapon or object" means-**
any firearm, loaded or not, and whether operable or not;
any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or
any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.
** The term "force" means action to compel submission of another or to overcome or prevent another's resistance by-**
** the use or display of a dangerous weapon or object;**
the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or
physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.
** The term "threatening or placing that other person in fear" under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.**
** The term "threatening or placing that other person in fear" under paragraph (1)(A) of subsection (c) (aggravated sexual assault), or under subsection (h) (abusive sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.**
** Such lesser degree of harm includes-**
physical injury to another person or to another person's property; or
**a threat-
to accuse any person of a crime;
to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule; or
through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.
**
The term "bodily harm" means any offensive touching of another, however slight.
The term "child" means any person who has not attained the age of 16 years.
The term "lewd act" means-
the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
The term "indecent liberty" means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.
The term "indecent conduct" means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of-
that other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or
that other person while that other person is engaged in a sexual act, sodomy (under section 925 (article 125) of this chapter), or sexual contact.
The term "act of prostitution" means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.
The term "consent" means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if-
under 16 years of age; or
substantially incapable of-
**appraising the nature of the sexual conduct at issue due to-
mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
mental disease or defect that renders the person unable to understand the nature of the sexual conduct at issue;**
physically declining participation in the sexual conduct at issue; or
physically communicating unwillingness to engage in the sexual conduct at issue.
The term "mistake of fact as to consent" means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.
The term "affirmative defense" means any special defense that, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts. The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.
age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
That the accused engaged in a sexual act with a child; and
That at the time of the sexual act the child had not attained the age of twelve years.
That the accused engaged in a sexual act with a child;
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by using force against that child.
That the accused engaged in a sexual act with a child;
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by causing grievous bodily harm to any person.
That the accused engaged in a sexual act with a child;
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by threatening or placing that child in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
That the accused engaged in a sexual act with a child;
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by rendering that child unconscious.
That the accused engaged in a sexual act with a child;
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and
(iii)(a) That the accused did so by administering to that child a drug, intoxicant, or other similar substance;
That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child; and
That, as a result, that child's ability to appraise or control conduct was substantially impaired.
That the accused caused another person, who is of any age, to engage in a sexual act; and
That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).
That the accused caused another person, who is of any age, to engage in a sexual act; and
That the accused did so by causing bodily harm to another person.
That the accused engaged in a sexual act with another person, who is of any age; and
(Note: add one of the following elements)
That the other person was substantially incapacitated;
That the other person was substantially incapable of appraising
the nature of the sexual act;
declining participation in the sexual act; or
That the accused engaged in a sexual act with a child; and
That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years.
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(b) Aggravated sexual contact by causing grievous bodily harm.
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(c) Aggravated sexual contact by using threats or placing in fear.
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(d) Aggravated sexual contact by rendering another unconscious.
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
unconscious.
(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(ii)(a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
That the accused engaged in a lewd act; and
That the act was committed with a child who has not attained the age of 16 years.
(i)(a) That the accused engaged in sexual contact with a child; or
(b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force.
(i)(a) That the accused engaged in sexual contact with a child; or
That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by using force against that child.
(c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.
(i)(a) That the accused engaged in sexual contact with a child; or
That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by causing grievous bodily harm to any person.
(d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.
(i)(a) That the accused engaged in sexual contact with a child; or
That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by threatening or placing that child or that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
(e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering another or that child unconscious.
(i)(a) That the accused engaged in sexual contact with a child; or
That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and
That the accused did so by rendering that child or that other person unconscious.
(f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.
(i)(a) That the accused engaged in sexual contact with a child; or
(iii)(a) That the accused did so by administering to that child or that other person a drug, intoxicant, or other similar substance;
That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child or that other person; and
That, as a result, that child's or that other person's ability to appraise or control conduct was substantially impaired.
(i)(a) That the accused engaged in sexual contact with another person;
or
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(i)(a) That the accused engaged in sexual contact with another person; or
person; and
(Note: add one of the following elements)
That the other person was substantially incapacitated;
That the other person was substantially incapable of appraising
the nature of the sexual contact;
declining participation in the sexual contact; or
(i)(a) That the accused engaged in sexual contact with a child; or
That the accused committed a certain act or communication;
That the act or communication was indecent;
That the accused committed the act or communication in the physical presence of a certain child;
That the child was under 16 years of age; and
That the accused committed the act or communication with the intent to:
arouse, appeal to, or gratify the sexual desires of
any person; or
That the accused engaged in certain conduct; and
That the conduct was indecent conduct.
That the accused compelled a certain person to engage in an act of prostitution; and
That the accused directed another person to said person, who then engaged in an act of prostitution.
That the accused had sexual contact with another person;
That the accused did so without that other person's permission; and
That the accused had no legal justification or lawful authorization for that sexual contact.
That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
That the accused's exposure was in an indecent manner;
That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused's family or household; and
That the exposure was intentional.
The terms are defined in Paragraph 45a.(t), supra.
See Mil. R. Evid. 412 concerning rules of evidence relating to the character of the victim of an alleged sexual offense.
In conduct cases, "indecent" generally signifies that form of immorality relating to sexual impurity that is not only grossly vulgar, obscene, and repugnant to common propriety, but also tends to excite lust and deprave the morals with respect to sexual relations. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards.
The following lesser included offenses are based on internal cross-references provided in the statutory text of Article 120. See subsection (e) for a further listing of possible lesser included offenses.
Article 120-Aggravated sexual contact
Article 134-Assault with intent to commit rape
Article 128-Aggravated assault; Assault; Assault consummated by a
battery
(2) Rape of a child.
Article 120-Aggravated sexual contact with a child; Indecent act
Article 134-Assault with intent to commit rape
Article 128-Aggravated assault; Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16
Article 80-Attempts
(3) Aggravated sexual assault.
Article 120-Abusive sexual contact
Article 128-Aggravated assault; Assault; Assault consummated by a battery
Article 80-Attempts
(4) Aggravated sexual assault of a child.
Article 120-Abusive sexual contact with a child; Indecent act
Article 128-Aggravated assault; Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16
Article 80-Attempts
(5) Aggravated sexual contact.
Article 128-Aggravated assault; Assault; Assault consummated by a battery
Article 80-Attempts
(6) Aggravated sexual abuse of a child.
Article 120-Indecent act
Article 128-Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16
Article 80-Attempts
(7) Aggravated sexual contact with a child.
Article 120-Indecent act
Article 128-Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16
Article 80-Attempts
(8) Abusive sexual contact.
Article 128-Assault; Assault consummated by a battery
Article 80-Attempts
(9) Abusive sexual contact with a child.
Article 120-Indecent act
Article 128-Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16
Article 80-Attempts
(10) Indecent liberty with a child.
Article 120-Indecent act
Article 80-Attempts
(11) Indecent act.
Article 80-Attempts
(12) Forcible pandering.
Article 80-Attempts
(13) Wrongful sexual contact
.Article 80-Attempts
(14) Indecent exposure.
Article 80-Attempts
Depending on the factual circumstances in each case, to include the type of act and level of force involved, the following offenses may be considered lesser included in addition to those offenses listed in subsection d. (See subsection (d) for a listing of the offenses that are specifically cross-referenced within the statutory text of Article 120.) The elements of the proposed lesser included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the greater offense and vice versa. See Appendix 23 for further explanation of lesser included offenses.
Article 120-Indecent act; Wrongful sexual contact
Article 120-Aggravated sexual assault by causing bodily harm; Abusive sexual contact by causing bodily harm; Indecent act; Wrongful sexual contact
Article 120-Aggravated sexual assault by using threats or placing in fear; Abusive sexual contact by using threats or placing in fear; Indecent act; Wrongful sexual contact
(1)(d) Rape by rendering another unconscious.
Article 120-Aggravated sexual assault upon a person substantially incapacitated; Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact
(1)(e) Rape by administration of drug, intoxicant, or other similar substance.
Article 120-Aggravated sexual assault upon a person substantially incapacitated; Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact
(2)(a) - (f) Rape of a child who has not attained 12 years; Rape of a child who has attained the age of 12 years but has not attained the age of 16 years.
Article 120-Aggravated sexual assault of a child; Aggravated sexual abuse of a child; Abusive sexual contact with a child; Indecent liberty with a child; Wrongful sexual contact
(3) Aggravated sexual assault.
Article 120-Wrongful sexual contact; Indecent act
(4) Aggravated sexual assault of a child.
Article 120-Aggravated sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact
sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact
(5)(a) Aggravated sexual contact by force.
Article 120-Indecent act; Wrongful sexual contact
(5)(b) Aggravated sexual contact by causing grievous bodily harm.
Article 120-Abusive sexual contact by causing bodily harm; Indecent act; Wrongful sexual contact
(5)(c) Aggravated sexual contact by using threats or placing in fear.
Article 120-Abusive sexual contact by using threats or placing in fear; Indecent act; Wrongful sexual contact
(5)(d) Aggravated sexual contact by rendering another unconscious.
Article 120-Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact
(5)(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.
Article 120-Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual contact
(6) Aggravated sexual abuse of a child.
Article 120-Aggravated sexual contact with a child; Aggravated sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact
(7) Aggravated sexual contact with a child.
Article 120-Abusive sexual contact with a child; Indecent liberty with a child; Wrongful sexual contact
(8) Abusive sexual contact.
Article 120-Wrongful sexual contact; Indecent act
(9) Abusive sexual contact with a child.
Article 120-Indecent liberty with a child; Wrongful sexual contact
(10) Indecent liberty with a child.
Article 120-Wrongful sexual contact
Death or such other punishment as a court martial may direct.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Abusive sexual contact with a child and indecent liberty with a child.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(5) Abusive sexual contact.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.
(6) Indecent act or forcible pandering.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(7) Wrongful sexual contact or indecent exposure.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by (using a dangerous weapon or object, to wit: against (him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)).
(ii) Rape by suggestion of possession of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him) (her) to believe it was a dangerous weapon or object.
(iii) Rape by using physical violence, strength, power, or restraint to any person.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by using (physical violence) (strength) (power) (restraint applied to ), sufficient that (he) (she) could not avoid or escape the sexual conduct.
(b) Rape by causing grievous bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by causing grievous bodily harm upon (him)(her)(), to wit: a (broken leg)(deep cut)(fractured skull)().
(c) Rape by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by [threatening] [placing (him)(her) in fear] that (he)(she) () will be subjected to (death)(grievous bodily harm) (kidnapping) by .
(d) Rape by rendering another unconscious.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by rendering (him)(her) unconscious.
(e) Rape by administration of drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by administering to (him)(her) a drug, intoxicant, or other similar substance, (by force) (by threat of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her) ability to [(appraise) (control)][(his) (her)] conduct.
(2) Rape of a child.
(a) Rape of a child who has not attained the age of 12 years.
In that (personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: with , a child who had not attained the age of 12 years.
(b) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using force.
(i) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by (using a dangerous weapon or object, to wit: against (him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)).
(ii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of possession of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her) to believe it was a dangerous weapon or object.
(iii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using physical violence, strength, power, or restraint to any person.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by using (physical violence) (strength) (power) (restraint applied to ) sufficient that (he)(she) could not avoid or escape the sexual conduct.
(c) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by causing grievous bodily harm upon (him)(her)(), to wit: a (broken leg)(deep cut)(fractured skull)().
(d) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by [threatening] [placing (him)(her) in fear] that (he)(she) () would be subjected to (death)(grievous bodily harm) (kidnapping) by .
(e) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child unconscious.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by rendering (him)(her) unconscious.
(f) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: ,with , a child who had attained the age of 12 years, but had not attained the age of 16 years, by administering to (him)(her) a drug, intoxicant, or other similar substance (by force) (by threat of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her) ability to [(appraise)(control)][(his)(her)] conduct.
(3) Aggravated sexual assault.
(a) Aggravated sexual assault by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by [threatening] [placing(him)(her) in fear of] [(physical injury to ) (injury to 's property)(accusation of crime)(exposition of secret)(abuse of military position)()].
(b) Aggravated sexual assault by causing bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, cause to engage in a sexual act, to wit: , by causing bodily harm upon (him)(her)(), to wit: .
(c) Aggravated sexual assault upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: with , who was (substantially incapacitated) [substantially incapable of (appraising the nature of the sexual act)(declining participation in the sexual act) (communicating unwillingness to engage in the sexual act)].
(4) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a sexual act, to wit: with , who had attained the age of 12 years, but had not attained the age of 16 years.
(5) Aggravated sexual contact.
(a) Aggravated sexual contact by using force.
(i) Aggravated sexual contact by use or display of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by (using a dangerous weapon or object, to wit: against (him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)).
(ii) Aggravated sexual contact by suggestion of possession of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)() to believe it was a dangerous weapon or object.
(iii) Aggravated sexual contact by using physical violence, strength, power, or restraint to any person.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by using (physical violence) (strength) (power) (restraint applied to ), sufficient that (he)(she)() could not avoid or escape the sexual conduct.
(b) Aggravated sexual contact by causing grievous bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by causing grievous bodily harm upon (him)(her)(), to wit: a (broken leg)(deep cut)(fractured skull)().
(c) Aggravated sexual contact by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by [(threatening (him)(her)()] [(placing(him)(her) () in fear] that (he)(she)() will be subjected to (death)(grievous bodily harm)(kidnapping) by .
(d) Aggravated sexual contact by rendering another unconscious.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by rendering (him)(her)() unconscious.
(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by administering to (him) (her)() a drug, intoxicant, or other similar substance, (by force) (by threat of force) (without (his)(her)() knowledge or permission), and thereby substantially impaired (his)(her)() ability to [(appraise) (control)] [(his) (her)] conduct.
(6) Aggravated sexual abuse of a child.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, engage in a lewd act, to wit: with, a child who had not attained the age of 16 years.
(7) Aggravated sexual contact with a child.
(a) Aggravated sexual contact with a child who has not attained the -age of 12 years.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had not attained the age of 12 years)(cause to engage in sexual contact, to wit: , with , a child who had not attained the age of 12 years) (cause sexual contact with or by , a child who had not attained the age of 12 years, to wit: )].
(b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force.
(i) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by (using a dangerous weapon or object, to wit: against (him)(her)()) (displaying a dangerous weapon or object, to wit: to (him)(her)()).
(ii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of possession of dangerous weapon or object.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)() to believe it was a dangerous weapon or object.
(iii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using physical violence, strength, power, or restraint to any person.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had not attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by using (physical violence) (strength) (power) (restraint applied to ) sufficient that (he)(she)() could not avoid or escape the sexual conduct.
(c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by causing grievous bodily harm upon (him)(her)(), to wit: a (broken leg)(deep cut)(fractured skull)().
(d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by [threatening] [placing (him)(her)() in fear] that (he)(she)() will be subjected to (death) (grievous bodily harm)(kidnapping) by .
(e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child or another unconscious.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: )] by rendering (him)(her)() unconscious.
(f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years but had not attained the age of 16 years, to wit: )] by administering to (him)(her)() a drug, intoxicant, or other similar substance (by force) (by threat of force) (without (his)(her)() knowledge or permission), and thereby substantially impaired (his)(her)() ability to [(appraise) (control)][(his) (her)] conduct.
(8) Abusive sexual contact.
(a) Abusive sexual contact by using threats or placing in fear.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by [(threatening) (placing (him)(her)() in fear of)] [(physical injury to )(injury to 's property)(accusation of crime)(exposition of secret)(abuse of military position)()].
(b) Abusive sexual contact by causing bodily harm.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] by causing bodily harm upon (him)(her)(), to wit: ().
(c) Abusive sexual contact by engaging in a sexual act with a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or substantially incapable of communicating unwillingness.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with ) (cause to engage in sexual contact, to wit: , with ) (cause sexual contact with or by , to wit: )] while (he)(she)() was [substantially incapacitated] [substantially incapable of (appraising the nature of the sexual contact) (declining participation in the sexual contact) (communicating unwillingness to engage in the sexual contact)].
(9) Abusive sexual contact with a child.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20, [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years but had not attained the age of 16 years)(cause to engage in sexual contact, to wit: , with , a child who had attained the age of 12 years but had not attained the age of 16 years) (cause sexual contact with or by , a child who had attained the age of 12 years but had not attained the age of 16 years, to wit: )].
(10) Indecent liberties with a child.
In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20,(take indecent liberties) (engage in indecent conduct) in the physical presence of , a (female) (male) under 16 years of age, by (communicating the words: to wit:) (exposing one's private parts, to wit: ) (), with the intent to [(arouse) (appeal to) (gratify) the (sexual desire) of the (or )] [(abuse)(humiliate)(degrade) ].
(11) Indecent act.
In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20,wrongfully commit indecent conduct, to wit .
(12) Forcible pandering.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20, compel to engage in [(a sexual act)(sexual contact) (lewd act), to wit: ] for the purpose of receiving money or other compensation with (a) person(s) to be directed to (him)(her) by the said .
(13) Wrongful sexual contact.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20, engage in sexual contact with , to wit: , and such sexual contact was without legal justification or lawful authorization and without the permission of .
(14) Indecent exposure.
In that (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about 20, intentionally (expose in an indecent manner (his) (her) () () while (at the barracks window) (in a public place) ()."
[Note: The analysis below was removed from Appendix 23 and pertains to the 2007 Amendment of Article 120. The analysis was inserted into this appendix to accompany the version of Article 120 applicable to offenses committed during the period 1 October 2007 through 27 June 2012. For offenses committed prior to 1 October 2007, analysis related to Article 120 and other punitive articles applicable to sexual offenses is contained in Appendix 27. For offenses committed on or after 28 June 2012, analysis related to Article 120, 120b, and 120c is contained in Appendix 23.]
2007 Amendment: Changes to this paragraph are contained in
Div. A. Title V. Subtitle E, Section 552(a)(1) of the National
Defense Authorization Act for Fiscal Year 2006, P.L. 109-163,
119 Stat. 3257 (6 January 2006), which supersedes the previous
paragraph 45, Rape and Carnal Knowledge, in its entirety and
replaces paragraph 45 with Rape, sexual assault and other sexual
misconduct. In accordance with Section 552(c) of that Act, the
amendment to the Article applies only with respect to offenses
committed on or after 1 October 2007.
Nothing in these amendments invalidates any nonjudicial punishment
proceeding, restraint, investigation, referral of charges,
trial in which arraignment occurred, or other action begun prior to
1 October 2007. Any such nonjudical punishment proceeding,
restraint, investigation, referral of charges, trial in which arraignment
occurred, or other action may proceed in the same manner
and with the same effect as if these amendments had not been
prescribed.
This new Article 120 consolidates several sexual misconduct
offenses and is generally based on the Sexual Abuse Act of 1986,
18 U.S.C. Sections 2241-2245. The following is a list of offenses
that have been replaced by this new paragraph 45:
its entirety by three new offenses under paragraph 45. See subsections
and (m) Wrongful Sexual Contact.
has been replaced in its entirety by three new offenses under
paragraph 45. See subsections (g) Aggravated Sexual Contact
with a Child, (i) Abusive Sexual Contact with a Child, and (j)
Indecent Liberty with a Child.
replaced in its entirety by a new offense under paragraph 45. See
subsection (n) Indecent Exposure.
been replaced in its entirety by a new offense under
paragraph 45. See subsection (k) Indecent Act.
been amended. The act of compelling another person to engage in
an act of prostitution with another person will no longer be an
offense under paragraph 97 and has been replaced by a new
offense under paragraph 45. See subsection (l), Forcible
Pandering.
taken from paragraphs 89.c and 90.c of the Manual (2005 ed.)
and is intended to consolidate the definitions of "indecent," as
used in the former offenses under Article 134 of "Indecent acts or
liberties with a child," "Indecent exposure," and "Indecent acts
with another," formerly at paragraphs 87, 88, and 90 of the 2005
Manual, and "Indecent language," at paragraph 89. The application
of this single definition of "indecent" to the offenses of
"Indecent liberty with a child," "Indecent act," and "Indecent
exposure" under Article 120 is consistent with the construction
given to the former Article 134 offenses in the 2005 Manual that
were consolidated into Article 120. _See e.g. United States v.
Negron_, 60 M.J. 136 (C.A.A.F. 2004).
whether an offense is factually the same as another offense, and
therefore lesser-included to that offense, is the "elements"
test. United States v. Foster, 40 M.J. 140, 142 (C.M.A. 1994). Under
this test, the court considers "whether each provision requires
proof of a fact which the other does not." Blockburger, 284 U.S.
299 at 304 (1932). Rather than adopting a literal application of
the elements test, the Court stated that resolution of lesser-included
claims "can only be resolved by lining up elements realistically
and determining whether each element of the supposed
'lesser' offense is rationally derivative of one or more elements of
the other offense - and vice versa." Foster, 40 M.J. at 146.
Whether an offense is a lesser-included offense is a matter of law
that the Court will consider de novo. United States v. Palagar, 56
M.J. 294, 296 (C.A.A.F. 2002).
punishment of death.
Subject
Ref.
Page
Abandoned property, seizure of
Mil. R. Evid. 316(d)(1)
?????
Abandoned property of enemy, offenses concerning
IV-39
Abandoning guard or watch
IV, Para. 10b(4)
IV-13
_ See also_ Sentinel or lookout.
**Abandonment or surrender of command, military property,
place, unit or ship**
Shamefully
IV-33
Subordinate compelling
IV-36
Abettor
IV-1
_ See also_ Principals.
Absence
Accused's
After trial substitute service
R.C.M. 1104(b)(1)(C)
II-148
During pretrial conference
R.C.M. 802(d)
II-78
During pretrial investigation
R.C.M. 405(h)(4)
II-39
During trial
R.C.M. 804
II-78
Speedy trial, effect on
R.C.M. 707(c)(1)
II-73
Voluntary for child testimony
R.C.M. 804(c)
II-79
Defense counsel, during trial
R.C.M. 805(c)
II-80
Members
R.C.M. 805(b)
II-80
Military judge
R.C.M. 805(a)
II-80
Trial counsel, during trial
R.C.M. 805(c)
II-80
Absence without leave
IV-13
_ See also_ Desertion
Abusive sexual contact
IV-68
Accessory
After the fact
IV-2
Before the fact
IV-1
Accident
As defense
R.C.M. 916(f)
II-113
Fleeing scene of
IV-118
Accomplices
_ See also_ Conspiracy; Joint trial; Principals.
Co-conspirators
IV-6
Joint charge
R.C.M. 307(c)(5)
II-30
Accused
_ See also_ specific topics.
Absence of
After trial substitute service
R.C.M. 1104(b)(1)(C)
II-148
During pretrial conference
R.C.M. 802(d)
II-78
During pretrial investigation
R.C.M. 405(h)(4)
II-39
During trial
R.C.M. 804
II-78
Speedy trial, effect on
R.C.M. 707(c)(1)
II-73
Voluntary for child testimony
R.C.M. 804(c)
II-79
Action, service of
R.C.M. 1107(h)
II-160
Announcement of presence in court
R.C.M. 813(a)(2)
II-88
Appearance of, at trial
R.C.M. 804(c)(1)
II-79
Appellate rights, advice
By defense counsel
R.C.M. 502(d)(6)
II-46
By military judge
R.C.M. 1010
II-138
Character evidence
Mil. R. Evid. 404(a)(1); 404(b)
III-19
Charges
Notification of
R.C.M. 308
II-30
Service of
R.C.M. 602
II-54
Composition of court-martial, elections
R.C.M. 903
II-91
Conferences
Presence at
R.C.M. 802(d)
II-78
Rights at
R.C.M. 802(c)
II-78
Counsel
_ See also_ **Counsel; Defense counsel.**
Explanation at trial of right to
R.C.M. 901(d)(4)
II-89
_ Rights to_
_ See also_ **Self-Incrimination.**
Appellate counsel
R.C.M. 1202(b)(2)
II-173
At general or special court-martial
R.C.M. 506
II-51
At interrogations
Mil. R. Evid. 305(d); 305(e)
III-7
At lineups
Mil. R. Evid. 321(b)(2)
III-17
At pretrial investigations
R.C.M. 405(d)(2)
II-34
At summary court-martial
R.C.M. 1301(e)
II-182
Before review of pretrial confinement
R.C.M. 305(f)
II-22
Counsel advice on post-trial rights
R.C.M. 1010(d)
II-138
Decision of Court of Criminal Appeal, service on
R.C.M. 908(c)(3); 1203(d)
II-100; II-175
After appeal by accused
R.C.M. 1203(d)
II-175
After appeal by United States
R.C.M. 908(c)(3)
II-100
Investigation, pretrial, rights
R.C.M. 405(f)
II-35
Joinder of
R.C.M. 601(e)(3)
II-54
Jurisdiction over
R.C.M. 202(a)
II-13
Mental examination of
R.C.M. 706
II-71
Notification of charges
R.C.M. 308
II-30
Post-trial rights
Advice to accused
R.C.M. 1010
II-138
Right to submit matters to convening authority
R.C.M. 1010(a); 1105
II-138; II-150
Presence at trial
R.C.M. 803; 804
II-78; II-79
Removal from courtroom
R.C.M. 804(b)
II-79
Restraint of
During trial
R.C.M. 804(d)(3)
II-80
Pretrial
R.C.M. 304; 305
II-19; II-21
Sentencing,_ See_ Presenting procedure.
Service of appellate court decision
R.C.M. 908(c)(3); 1203(d)
II-100; II-175
Service of charges
R.C.M. 602
II-54
Severance of, motion for
_ See also_ **Joint trial.**
Generally
R.C.M. 905(b)(5); 906(b)(9)
II-93; II-96
Time for
R.C.M. 905(b)(5)
II-93
Waiver
R.C.M. 905(e)
II-94
Accuser
Defined
Art. 1(9), UCMJ
A2-1
Disqualification
Convening authority
R.C.M. 504(c)(1); 601(c)
II-49; II-53
Defense counsel
R.C.M. 502(d)(4)(A)
II-45
Member
R.C.M. 912(f)(1)(C)
II-106
Personnel of court-martial
R.C.M. 502(e)(2)(A)
II-47
Reviewer
R.C.M. 1112(c)
II-166
Subordinate of convening authority
R.C.M. 504(c)(2)
II-49
Trial counsel
R.C.M. 502(d)(4)(A)
II-45
Nominal accuser
R.C.M. 103(21); 307(a)
II-2; II-27
Notification to accused of
R.C.M. 308
II-30
Preferral of charges
R.C.M. 307
II-27
Acquittal
_ See also_ Findings.
Motion for a finding of not guilty
R.C.M. 917
II-115
Reconsideration of
R.C.M. 924
II-121
Record of trial in case of
R.C.M. 1103(e)
II-144
Action of convening authority
_ See also_ Convening authority.
Ambiguous action
R.C.M. 1107(g)
II-160
Contents of action
R.C.M. 1107(f)
II-158
Dismissal of charges
R.C.M. 1107(c)(2)(A)
II-156
Erroneous action
R.C.M. 1107(g)
II-160
Findings, action on
R.C.M. 1107(c); 1107(f)(3)
II-156; II-158
Forms for
Appendix 16
A16-1
Generally
R.C.M. 1107
II-154
Incomplete
R.C.M. 1107(g)
II-160
Lesser included offense, approval of
R.C.M. 1107(c)(1)
II-156
Matters considered
R.C.M. 1107(b)(3)
II-155
Mental capacity, when accused lacks
R.C.M. 1107(b)(5)
II-155
Mental responsibility, lack of
R.C.M. 1107(b)(4)
II-155
Modification of
R.C.M. 1107(f)(2); 1107(g)
II-158; II-160
New trial
R.C.M. 1107(f)(5)(B)
II-160
Not guilty findings, action on
R.C.M. 1107(b)(4)
II-155
Other trial, ordering
R.C.M. 1107(e)(2)
II-158
Pretrial agreement, effect of
R.C.M. 705(b)(2)(E)
II-70
Rehearing, ordering
R.C.M. 1107(c)(2)(B); 1107(e)(1);
R.C.M. 1107(f)(5)
II-156; II-157; ???
Sentence, action on
R.C.M. 1107(d); 1107(f)(4)
II-156; II-159
Service on accused
R.C.M. 1107(h)
II-160
Suspension of sentence
R.C.M. 1108
II-160
When taken
R.C.M. 1107(b)(2)
II-155
Who may take
R.C.M. 1107(a)
II-154
Withdrawal of
R.C.M. 1107(f)(2)
II-158
Additional charges
R.C.M. 307(c)(2)
II-27
Adequate interest to challenge search and seizure
Mil. R. Evid. 311(a)(2)
III-8
Adjournment of courts-martial
Generally
R.C.M. 1011
II-138
Sessions after
R.C.M. 803; 1102
II-78; II-141
Administrative action, to dispose of offense
R.C.M. 306(c)(2); V. Para. 1d(1)
II-26; V-1
Administrative proceeding, wrongful interference with
IV-124
Admissions. _ See_ Self-incrimination.
Admonition
Of court-martial, member, military judge, or counsel
R.C.M. 104(a)(1)
II-4
Punishment, nonjudicial
V. Para. 5c(1)
V-5
Adultery
IV-103
Advice, pretrial
Contents
R.C.M. 406(b)
II-40
Distribution
R.C.M. 406(c)
II-41
General court-martial, requirement for
R.C.M. 601(d)(2)(B)
II-53
Motion concerning
R.C.M. 905(b)(1)
II-93
R.C.M. 906(b)(3)
II-96
Responsibility for
R.C.M. 406(a)
II-40
Waiver
R.C.M. 601(d)(2)(B)
II-53
When required
R.C.M. 406(a)
II-40
Affidavits
Character of accused, proof by
Mil. R. Evid. 405(c)
III-19
Sentencing proceedings
R.C.M. 1001(c)(3)
II-125
Affirmation
_ See also_ Oaths.
Oath, included in
R.C.M. 807(a)
II-82
Affirmative defenses. _ See_ ** Defenses.**
Aggravated assault. _ See_ ** Assault.**
Aggravated sexual assault
IV-68
Aggravated sexual contact
IV-68
Aggravating circumstances, capital cases
R.C.M. 1004(c)
II-132
_ See also_ Capital case.
Aggravation, evidence in
R.C.M. 1001(b)(4)
II-124
Agreement
Pretrial._ See_ Pretrial agreement.
To commit offense._ See_ ** Conspiracy.**
Aider and abettor
IV-1
_ See also_ Principals.
Aiding the enemy
Attempts
IV-5; IV-41
Generally
IV-41
Aircraft. _ See_ Jet.
Aircraft carrier. _ See_ ** Vessel.**
Alcohol. _ See_ Drunk; Intoxication.
Alibi
Failure to disclose, effect of
R.C.M. 701(g)(3)
II-59
Notice of, by defense
R.C.M. 701(b)(2)
II-58
Notice of rebuttal witnesses by trial counsel
R.C.M. 701(a)(3)(B)
II-57
Withdrawal after disclosure, effect of
R.C.M. 701(b)(5)
II-59
Amending charges and specifications
R.C.M. 603
II-55
_ See also_ Charges and specifications.
Ammunition, casting away
IV-33
Amphetamines. _ See_ Controlled substances, offenses involving.
Analysis
Military Rules of Evidence
Appendix 22
A22-1
Nonjudicial Punishment Procedure
Appendix 24
A24-1
Punitive Articles
Appendix 23
A23-1
Rules for Courts-Martial
Appendix 21
A21-1
Animals, abusing of
IV-103
Announcement
Findings
R.C.M. 922
II-121
Form for
Appendix 10
A10-1
Persons present or absent at trial
R.C.M. 813
II-88
Sentence
R.C.M. 1007
II-136
Form for
Appendix 11
A11-1
Pretrial agreement inquiry after
R.C.M. 910(h)(3)
II-104
Appeals. _ See_ Appellate review.
Appellate counsel. _ See_ ** Appellate review.**
Appellate review.
Appeal by United States (Art. 62, UCMJ)
R.C.M. 908
II-99
Appellate counsel
Duties
R.C.M. 1202(b)
II-173
Generally
R.C.M. 1202(a)
II-173
When appeal filed by United States
R.C.M. 908(c)(1)
II-100
Finality of courts-martial
R.C.M. 1209
II-179
Judge Advocate General, The
Cases of lack of mental responsibility
R.C.M. 1201(b)(3)(B)
II-172
Cases referred to Court of Criminal Appeals by
(Art. 66, UCMJ)
R.C.M. 1201(a)
II-172
Cases reviewed by (Art 69, UCMJ)
R.C.M. 1201(b)(1); 1201(b)(2);
1201(b)(3)
II-172
Remission and suspension of sentence by
R.C.M. 1201(c)
II-173
Review of summary court-martial by
R.C.M. 1306(d)
II-187
New trial._ See_ New trial.
Nonjudicial punishment
V. Para. 7
V-8
Powers and responsibilities of the Service Secretary
R.C.M. 1206
II-178
Restoration
R.C.M. 1208
II-178
Review by a judge advocate
R.C.M. 1112
II-166
Review by Court of Appeals for the Armed Forces.
_ See_ Court of Appeals for the Armed Forces.
Review by Court of Criminal Appeals._ See_ **Court of
Criminal Appeals.**
Review by the Supreme Court (Art. 67(h)(1), (2))
Action by Court
R.C.M. 1205(b)
II-178
Cases subject to review
R.C.M. 1205(a)
II-178
Sentence requiring approval of the President
R.C.M. 1207
II-178
Waiver or withdrawal of
R.C.M. 1110
II-164
Appellate rights waiver form
Appendix 19
A19-1
Appointment in armed forces. _ See_ ** Enlistment.**
Apprehension
Absence without leave, terminated by
IV-15
Attachment of jurisdiction
R.C.M. 202(c)(2)
II-15
Authorization, when required
R.C.M. 302(e)(2)
II-18
Custody, defined
IV-29
Defined
R.C.M. 302(a)
II-17
Deserters, by civilian authorities
R.C.M. 302(b)(3)
II-18
Desertion, terminated by
IV-12
Force, use of
R.C.M. 302(d)(3)
II-18
Grounds for
R.C.M. 302(c)
II-18
Procedure
R.C.M. 302(d)
II-18
Resisting
IV-28
Search incident to
Mil. R. Evid. 314(g)
III-13
_ See also_ **Search and seizure.**
Unlawful
IV-32
Warrant, when required
R.C.M. 302(d)(2); 302(e)(2)
II-18
Where made
R.C.M. 302(e)
II-18
Who may apprehend
R.C.M. 302(b)
II-17
Appropriation, wrongful
IV Para. 46
IV-74
Argument
Control of, by military judge
R.C.M. 801(a)(3)
II-75
Findings
R.C.M. 919
II-117
Motions
R.C.M. 801(a)(3)
II-75
Sentence
R.C.M. 1001(g)
II-126
Statement, opening
R.C.M. 913(b)
II-108
Armed forces, defined
R.C.M. 103(21)
II-2
Arms, casting away
IV-33
Arraignment
Accused, presence required at
R.C.M. 804
II-79
Additional charges, effect on referral of
R.C.M. 601(e)(2)
II-54
Amending charges, effect on
R.C.M. 603(b); 603(c)
II-55
Generally
R.C.M. 904
II-92
Arrest
Attachment of jurisdiction, effecting
R.C.M. 202(c)(2)
II-15
Breaking
IV-28
In quarters, as nonjudicial punishment
V. Para. 5b(1)(B)(i); 5c(3)
V-4; V-5
Members, disqualification while in
R.C.M. 912(f)(1)(L)
II-106
Pretrial
_ See also_ **Restraint,** pretrial.
Defined
R.C.M. 304(a)(3)
II-20
Duties inconsistent with
R.C.M. 304(a)(3)
II-20
Grounds for
R.C.M. 304(c)
II-20
Notice to persons in
R.C.M. 304(e)
II-21
Procedure
R.C.M. 304(d)
II-20
Punishment prohibited
R.C.M. 304(f)
II-21
Release from
Authority to grant
R.C.M. 304(g)
II-21
When required
R.C.M. 707(d)
II-74
Speedy trial, effect on
R.C.M. 707(b)(1); 707(b)(2)
II-73
Who may order
R.C.M. 304(b)
II-20
Unlawful, as offense
IV-32
Arson
_ See also_ Burning with intent to defraud.
Aggravated
IV-85
Murder while committing
IV-62
Assault with intent to commit
IV-104
Simple arson
IV-85
Unborn child, death or injury of
IV-4
Article 15. _ See_ Nonjudicial punishment.
Article 32. _ See_ Investigation, pretrial.
Article 39(a) session
R.C.M. 803
II-78
Presence of accused
R.C.M. 804(a)
II-79
Presence of military judge
R.C.M. 805(b)
II-80
Assault
Aggravated
IV-87
Attempts
IV-5; IV-87
Battery
IV-87
Child, as victim
IV-87
Commissioned officer, as victim
In execution of office
IV-19
Not in execution of office
IV-87
Of a friendly foreign power
IV-91
Defense of another
R.C.M. 916(e)(5)
II-113
Indecent
IV-104
Law enforcement official, as victim
IV-87
Maiming
IV-84
Noncommissioned, petty, or warrant officer, as victim
In execution of office
IV-21
Not in execution of office
IV-87
Self-defense
R.C.M. 916(e)
II-112
Sentinel or lookout, as victim
IV-87
Simple assault
IV-87
With intent to commit arson, burglary, housebreaking,
murder, rape, robbery, sodomy, or voluntary
manslaughter
IV-104
Unborn child, death or injury of
IV-4
Assembly of court-martial
Announcement of
R.C.M. 901(b); 911
II-89; II-104
Effect on
Changing members
R.C.M. 505(c)
II-50
Changing military judge
R.C.M. 505(e)
II-51
Enlisted members, request for
R.C.M. 903(a)(1); 903(d)
II-91; II-92
Military judge alone, request for trial by
R.C.M. 903(b)(2); 903(d)
II-91; II-92
Assistant counsel. _ See_ ** Counsel; Defense counsel; Trial counsel.**
Associate defense counsel. _ See_ ** Counsel; Defense counsel.**
Attachment, warrant of
R.C.M. 703(e)(2)(G)
II-66
Attempts
Aiding the enemy (Art. 104, UCMJ)
IV-5; IV-41
Assault (Art. 128, UCMJ)
IV-5; IV-87
Desertion (Art. 85, UCMJ)
IV-5; IV-10
Generally (Art. 80, UCMJ)
IV-4
Mutiny (Art. 94, UCMJ)
IV-5; IV-26
Subordinate compelling surrender (Art. 100, UCMJ)
IV-5; IV-36
Attorney. _ See_ Counsel; Defense counsel; Trial counsel.
Attorney-client relationship
_ See also_ Counsel; Defense counsel.
Availability of individual military counsel, effect on
R.C.M. 506(b)(2)
II-52
Change of defense counsel, effect on
R.C.M. 505(d)(2)
II-51
Privileged communications
Mil. R. Evid. 502
III-22
Attorney General, grants of immunity
R.C.M. 704(c)(1); 704(c)(2)
II-68
Authentication of
Evidence
Mil. R. Evid. 901; 902
III-48; III-49
_ See also_ **Evidence,** Authentication and identification.
Promulgating orders
R.C.M. 1114(e)
II-171
Record of trial
Certificate of correction
R.C.M. 1104(d)
II-149
Examination preceding
R.C.M. 1103(i)
II-145
Generally
R.C.M. 1104
II-147
Summary courts-martial
R.C.M. 1305(c)
II-186
Authorization to search, seize and apprehend. _ See_ **Search and
seizure.**
Automobile. _ See_ Search and seizure, Automobile;Vehicle.
Aviation cadet
Jurisdiction of courts-martial, subject to
Art. 2(a)(2), UCMJ; R.C.M. 202(a)
A2-1; ???
Summary courts-martial, not subject to trial by
R.C.M. 1301(c)
II-182
Bad checks. _ See_ Checks.
Bad-conduct discharge
Multiple offenses, authorizing
R.C.M. 1003(d)(3)
II-131
Prior convictions authorizing
R.C.M. 1003(d)(2)
II-131
Punishment, generally
R.C.M. 1003(b)(8)(C)
II-129
Special courts-martial, power to adjudge
R.C.M. 201(f)(2)(B)
II-12
Summary courts-martial, power to adjudge
R.C.M. 1301(d)
II-182
Bailiff
Detailing
R.C.M. 501(c)
II-43
Disqualification of
R.C.M. 502(e)(2)
II-47
Duties
R.C.M. 502(e)(3)(C)
II-47
Qualifications
Generally
R.C.M. 502(e)(1)
II-47
Lack of, action on
R.C.M. 502(f)
II-47
Battery. _ See_ Assault.
Bestiality
IV-84
Best evidence. _ See_ Evidence, Contents of writings, recordings,
and photographs.
Bias
Ground for challenge of
Member
R.C.M. 912(f)(1)(N)
II-106
Military judge
R.C.M. 902(a); 902(b)(1)
II-90
Impeachment of witness
Mil. R. Evid. 608(c)
III-40
Bigamy
IV-106
Bill of particulars
R.C.M. 906(b)(6)
II-96
Blasting caps, included in explosives
R.C.M. 103(11)
II-1
Blood extraction, as evidence
Mil. R. Evid. 312(d)
III-11
Board, sanity. _ See_ Mental capacity; Mental responsibility.
Boat. _ See_ Ship.
Boat. _ See_ Vessel.
Bodily harm. _ See_ Assault.
Body fluids, seizure of
Mil. R. Evid. 312(d)
III-11
_ See also_ Search and seizure, Body views and intrusions.
Bomb
Explosive, included in
R.C.M. 103(11)
II-1
Hoax
IV-133
Threat
IV-133
Breach of correctional custody
IV-111
Breach of peace
IV-60
Breaking and entering. _ See_ ** Burglary; Housebreaking;
Unlawful entry.**
Breaking arrest
IV-28
Breaking medical quarantine
IV-128
Breaking restriction
IV-129
_ See also_ Restriction.
Bribery
IV-106
Broadcasting of courts-martial, prohibited
R.C.M. 806(c)
II-82
Burden of proof.
_ See also_ Search and seizure, Burden of proof; **Self-
Incrimination,** Burden of proof.
Challenges
R.C.M. 912(f)(3)
II-106
Defenses
R.C.M. 916(b)
II-111
Findings
R.C.M. 920(e)(5)
II-119
Motions
Admissions and confessions
Mil. R. Evid. 304(e)
III-5
Eyewitness identification
Mil. R. Evid. 321(d)
III-17
Generally
R.C.M. 905(c)
II-93
Search and seizure
Mil. R. Evid. 311(e)
III-10
Burglary
Assault with intent to commit
IV-104
Generally
IV-93
Housebreaking, distinguished from
IV-94
Murder while committing
IV-62
Burning with intent to defraud
IV-107
Business records, admissibility
Mil. R. Evid. 803(6)
III-45
Cadet
Conduct unbecoming officer and gentlemen
IV-100
Dismissal, punishment by
R.C.M. 1003(b)(8)(A)
II-128
Jurisdiction of courts-martial, subject to
Art. 2(a)(2), UCMJ; R.C.M. 202(a)
A2-1; ???
Summary courts-martial, not subject to trial by
R.C.M. 1301(c)
II-182
Capital case
_ See also_ Capital offense; Death, as punishment.
Defined
R.C.M. 103(2)
II-1
Deposition, use in
Art. 49, UCMJ;
Mil. R. Evid. 804(b)(1)
A2-14; III-47
Guilty plea prohibited in
R.C.M. 910(a)
II-102
Military judge alone, no jurisdiction to try
R.C.M. 201(f)(1)(C)
II-12
Notice of aggravating circumstances required
R.C.M. 1004(b)(1)
II-131
Procedures in
R.C.M. 1004(b)
II-131
Capital offense
Defined
R.C.M. 103(3)
II-1
Referral
As noncapital
R.C.M. 201(f)(1)(A)(iii)(b)
?????
To special court-martial
R.C.M. 201(f)(2)(C)
II-12
To summary court-martial
R.C.M. 1301(c)
II-182
Captain's mast. _ See_ ** Nonjudicial punishment.**
Captured or abandoned property, offenses concerning
IV-39
Carrier. _ See_ Boat.
Carrying concealed weapon
IV-135
Casting away arms or ammunition
IV-33
Causing false alarms
IV-33
Censure
Court-martial, member, military judge, or counsel, prohibited
R.C.M. 104(a)(1)
II-4
Provoking speech and gestures, distinguished
IV-62
Certificate of correction
R.C.M. 1104(d)
II-149
Challenges
Control of, by military judge
R.C.M. 801(a)(3)
II-75
Members
For cause
R.C.M. 912(f)
II-106
Generally
R.C.M. 912
II-104
Peremptory
R.C.M. 912(g)
II-107
Presence of members during
R.C.M. 805(b)
II-80
Special court-martial without military judge
R.C.M. 912(h)
II-107
Military judge
R.C.M. 902
II-90
Change of venue
R.C.M. 906(b)(11)
II-97
Chaplains, privileged communications
Mil. R. Evid. 503
III-23
Character, evidence. _ See_ ** Evidence,** Character evidence;
Presentencing procedure.
Charges and specifications
_ See also_ specific offenses.
Additional charges
R.C.M. 307(c)(2)
II-27
Amendment of
R.C.M. 603
II-55
Bill of particulars
R.C.M. 906(b)(6)
II-96
Charge Sheet
Appendix 4
A4-1
Definitions
Charge
R.C.M. 307(c)(2)
II-27
Specification
R.C.M. 307(c)(3)
II-27
Dismissal of
By commander
R.C.M. 306(c)(1); 401(c)(1)
II-26; II-31
By military judge
R.C.M. 907
II-97
Speedy trial
R.C.M. 707(d)
II-74
Disposition of
R.C.M. 401
II-31
Duplicious
R.C.M. 906(b)(5)
II-96
Error in citation, effect of
R.C.M. 307(d)
II-30
Failure to state offense
R.C.M. 907(b)(1)(B)
II-98
Findings
R.C.M. 918(a)
II-116
Format
R.C.M. 307(c)(1); Appendix 4
II-27; A4-1
Forwarding
R.C.M. 401(c)(2)
II-31
Investigation of._ See_ Investigation, pretrial.
Joinder of
R.C.M. 307(c)(4); 601(e)(2)
II-29; II-54
Joint offenders
R.C.M. 307(c)(5); 601(e)(3)
II-30; II-54
Lesser included offenses._ See_ ** Findings; Lesser included
offenses.**
Motions as to defects in
R.C.M. 905(b)(2); 906(b)(4); 906(b)(5); 906(b)(6)
II-93; II-96
Multiple offenders
R.C.M. 307(c)(5)
II-30
Multiple offenses
R.C.M. 307(c)(4)
II-29
Multiplicious
R.C.M. 307(c)(4); 1003(c)(1)(C)
II-29; II-129
Notification to accused of
R.C.M. 308
II-30
Papers, accompanying, discovery of
R.C.M. 701(a)(1)
II-57
Preemption
R.C.M. 307(c)(2)
II-27
Preferral._ See_ Preferral of charges.
Reading of, as part of arraignment
R.C.M. 904
II-92
Referral._ See_ Referral of charges.
Service of
R.C.M. 602
II-54
Severance of
R.C.M. 905(b)(5)
II-93
Staff judge advocate, advice as to
R.C.M. 406
II-40
Statute of limitations, tolling
R.C.M. 403(a)
II-32
War, effect on disposition of
R.C.M. 401(d); 407(b)
II-32; II-41
Withdrawal of
R.C.M. 604
II-55
Pursuant to pretrial agreement
R.C.M. 705(b)(2)(C)
II-69
Checks
Dishonorable failure to maintain funds
IV-107
Forged
IV-79
Making, drawing, or uttering check, draft, or order
without sufficient funds
IV-81
Child
Abusive sexual contact with
IV-68
Aggravated sexual abuse of
IV-68
Aggravated sexual assault of
IV-68
Aggravated sexual contact with
IV-68
Assault consummated by battery on
IV-88
Endangerment
IV-107
Indecent liberties with
IV-120
Rape
IV-68
Remote live testimony
R.C.M. 804(c); R.C.M. 914A;
Mil. R. Evid. 611(d)
II-79; ???; III-41
Sodomy on
IV-85
Unborn child, death of injury of
IV Para. 44a
IV-64
Witness, competency
Mil. R. Evid. 601
III-39
Civilian authorities and tribunals
Authority to apprehend persons under code
R.C.M. 302(a)(2); 302(b)(3)
II-17; II-18
Control by, effect on absence without leave
IV-14
Delivery of military offenders to
R.C.M. 106
II-6
Former jeopardy, effect of trial by
R.C.M. 201(d); 907(b)(2)(C)
II-10; II-98
Martial law
I. Para. 2(a)(2)
I-1
Military occupation, superseding
I. Para. 2(a)(3)
I-1
Offenses subject to trial by
R.C.M. 201(d)
II-10
Civilian counsel. _ See_ ** Counsel; Defense counsel.**
Civilians
Aiding the enemy, subject to trial for
IV-41
Authority to apprehend deserters
R.C.M. 302(b)(3)
II-18
Contempt, punishment for
R.C.M. 809(a); 809(e)
II-84; II-85
Jurisdiction of courts-martial, subject to
Art. 2(a)(10); R.C.M. 202(a)
A2-2; ???
Orders, subject to
IV-20
Spying, subject to trial for
IV-44
Witnesses
Appear, neglect or refusal to
R.C.M. 703(e)(2)(G)
II-66
Subpoena of
R.C.M. 703(e)(2)
II-65
Warrant of attachment
R.C.M. 703(e)(2)(G)
II-66
Claims, false
IV-96
Classified information
Closure of court-martial
R.C.M. 806(b)(2)
II-82
Privilege concerning
Mil. R. Evid. 505
III-25
Record of trial
R.C.M. 1104(b)(1)(D); 1104(b)(2)
II-148; II-149
Clemency recommendation
R.C.M. 1105(b)(2)(D)
II-150
Clergy, privileged communications to
Mil. R. Evid. 503
III-23
Clerk
Detailing
R.C.M. 501(c)
II-43
Disqualification
R.C.M. 502(e)(2)
II-47
Duties
R.C.M. 502(e)(3)(C)
II-47
Lack of qualifications, action
R.C.M. 502(f)
II-47
Qualifications
R.C.M. 502(e)(1)
II-47
Co-accused. _ See_ Accomplices; Conspiracy; Principals.
Code, defined
R.C.M. 103(4)
II-1
Coercion
Defense, as a
R.C.M. 916(h)
II-113
Of court-martial
R.C.M. 104(a)(2)
II-5
Of guilty plea
R.C.M. 910(d)
II-103
Cohabitation, wrongful
IV-111
Command
Abandoning, surrendering, giving up
IV-33
Compelling surrender or abandonment of
IV-36
Detached or separate
R.C.M. 504(b)(2)(A); 504(b)(2)(B)
II-49
Endangering safety of
IV-33
Influence
As an offense
IV-32
Unlawful
Defined
R.C.M. 104
II-4
Exceptions
R.C.M. 104(a)(3)
II-5
Over disposition of charges
R.C.M. 306(a)
II-25
Commander
Appearance of accused at trial, responsibility for assistance
R.C.M. 804(d)(1)
II-80
Authorization to search._ See_ ** Search and seizure.**
Charges and specifications, authority to change
R.C.M. 603(b)
II-55
Charges, authority to dispose of
R.C.M. 401
II-31
Confinement
Post-trial, authority to order
R.C.M. 1101(b)(2)
II-139
Pretrial
Action by
R.C.M. 305(h)
II-22
Release, authority to order
R.C.M. 305(g)
II-22
Convening authority._ See_ ** Convening authority.**
Defined
R.C.M. 103(5)
II-1
For authorization to search
Mil. R. Evid. 315(d)
III-15
Dismissal of charges by
R.C.M. 401(c)(1)
II-31
Disposition of charges by
R.C.M. 401; 402
II-31; II-32
Disposition of offenses
R.C.M. 306
II-25
Forwarding charges by
R.C.M. 401(c)(2); 402
II-31; II-32
Influence, unlawful command
R.C.M. 104; IV. Para. 22
II-5; IV-32
Inquiry into reported offenses
R.C.M. 303
II-19
Lack of mental capacity or responsibility action on
R.C.M. 706(a)
II-71
Nonjudicial punishment, authority to administer
V. Para. 1c; 1d; 2a
V-1; V-2
Notification to accused of charges
R.C.M. 308
II-30
Preliminary investigation
R.C.M. 303
II-19
Relations with court-martial, members, military judge
R.C.M. 104(a)(1)
II-4
Report of offense, forwarded to
R.C.M. 301(b)
II-17
Subordinate, relations with
R.C.M. 306(a); 401(a); 601(e)
II-25; II-31; II-53
Commissioned officer
Assault on
IV-19; IV-87
Conduct unbecoming
IV-100
Disobedience of
IV-19
Disrespect towards
IV-17
Preferral of charges, oath
R.C.M. 307(b)(1)
II-27
Qualification as member of court-martial
R.C.M. 502(a)(1)(A)
II-43
Summary court-martial, power to try
R.C.M. 1301(c)
II-182
Commission, military. _ See_ ** Military commission.**
Common trial. _ See_ Joint trial.
Communicating a threat
IV-134
Communications, privileged. _ See_ ** Evidence,** Privileges.
Company punishment. _ See_ ** Nonjudicial punishment.**
Competency of witness. _ See_ ** Evidence,** Competency.
Composition of courts-martial
Accused's elections
R.C.M. 903
II-91
Capital case
R.C.M. 201(f)(1)(C)
II-12
Changing
R.C.M. 505
II-50
General court-martial
R.C.M. 501(a)(1)
II-43
Jurisdictional requisite
R.C.M. 201(b)(2)
II-9
Special court-martial
R.C.M. 501(a)(2)
II-43
Empowered to adjudge a bad-conduct discharge
R.C.M. 201(f)(2)(B)(ii)
II-12
Summary court-martial
R.C.M. 1301(a)
II-182
Concealment of
Evidence, as accessory after the fact
IV-3
Offender, as accessory after the fact
IV-3
Stolen property
IV-131
Weapon
IV-135
Concurrent jurisdiction
Civilian courts
R.C.M. 201(d)
II-10
Investigation of offenses, subject to
Appendix 3
A3-1
Military tribunals
R.C.M. 201(g)
II-12
Conditional guilty plea
R.C.M. 910(a)(2)
II-102
Conditions
In pretrial agreements
R.C.M. 705(c)
II-70
Of suspension
R.C.M. 1108(c)
II-160
On liberty
Defined
R.C.M. 304(a)(1)
II-19
Procedures
R.C.M. 304
II-19
Conduct
Cowardly
IV-35
Service discrediting, generally
IV-101
Unbecoming an officer and gentleman
IV-100
Conferences, pretrial
Accused's presence at
R.C.M. 802(d)
II-78
Admissions made at
R.C.M. 802(e)
II-78
Generally
R.C.M. 802(a)
II-77
Limitations
R.C.M. 802(f)
II-78
Matters on record
R.C.M. 802(b)
II-78
Rights of parties
R.C.M. 802(c)
II-78
Confessional stipulations
R.C.M. 705(b)(1)
II-69
Confessions. _ See_ Self-incrimination.
Confinement
Attachment of jurisdiction, effecting
R.C.M. 202(c)(2)
II-15
Capital cases
R.C.M. 1107(f)(4)(D)
II-159
Deferment of
R.C.M. 1101(c)
II-139
_ See also_ **Deferment of confinement.**
Escape from
IV-28
Hard labor without._ See_ ** Hard labor without confinement.**
In lieu of fine
R.C.M. 1113(e)(3)
II-169
On bread and water or diminished rations
As nonjudicial punishment
V. Para. 5b(2)(A)(i); 5b(2)(B)(i);
V. Para. 5c(5)
V-4; V-5; V-6
Post-trial
R.C.M. 1101
II-139
Pretrial
Advice to accused
R.C.M. 305(e)
II-22
Authority to order
R.C.M. 304(b); 305(c)
II-20; II-21
Conditions of
R.C.M. 304(f)
II-21
Counsel
R.C.M. 305(e)(3); 305(f)
II-22
Defined
R.C.M. 304(a)(4); 305(a)
II-20; II-21
Grounds
R.C.M. 304(c); 305(d); 305(h)(2)(B)
II-20; II-21; II-23
Illegal, remedy for
R.C.M. 305(j)(2); 305(k)
II-24
Motions concerning
R.C.M. 906(b)(8)
II-96
Procedure for ordering
R.C.M. 305
II-21
Punishment prohibited
R.C.M. 304(f)
II-21
Release
Authority to direct
R.C.M. 305(g)
II-22
Effect of
R.C.M. 305(k); 305(l)
II-24
Required
R.C.M. 707(d)
II-74
Review of
R.C.M. 305(i); 305(j)
II-23; II-24
Sea, effect of being at
R.C.M. 305(m)
II-25
Speedy trial, effect on
R.C.M. 707(b)(1); 707(b)(2)
II-73
Punishment
Contempt (Art. 48, UCMJ)
R.C.M. 809(e)
II-85
Deferment
R.C.M. 1101(c)
II-139
_ See also_ ** Deferment of confinement.**
Execution
R.C.M. 1113(e)(2)
II-169
General court-martial
R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii)
II-11
Generally
R.C.M. 1003(b)(7)
II-128
Place of
R.C.M. 1107(f)(4)(C); 1113(e)(2)(C)
II-159; II-169
Special court-martial
R.C.M. 201(f)(2)(B)
II-12
Summary court-martial
R.C.M. 1301(d)
II-182
Release from without authority
IV-31
Unlawful, as offense
IV-32
Congress, contemptuous words against
IV-17
Consent. _ See_ Search and seizure.
Conspiracy
_ See also_ Principals.
Evidence, statement of co-conspirator
Mil. R. Evid. 801(d)(2)
III-44
Generally
IV-6
Constitution of the United States
Appendix 1
A1-1
Constructive condonation of desertion
R.C.M. 907(b)(2)(D)(iii)
II-99
Constructive enlistment
R.C.M. 202(a)
II-13
Contempt
_ See also_ Disrespect.
Power of court-martial
R.C.M. 801(b)(2); 809
II-75; II-84
Toward noncommissioned, petty, or warrant officer
IV-21
Toward public officials
IV-17
Continuances
As remedy for
Failure to notify accused of charges
R.C.M. 308(c)
II-30
Failure to notify defense of evidence seized from the
accused
Mil. R. Evid. 311(d)(2)(B)
III-9
Failure to notify defense of immunity or leniency
granted to a government witness
Mil. R. Evid. 301(c)(2)
?????
Failure to notify defense of prior identification of the
accused
Mil. R. Evid. 321(c)(2)(B)
III-17
Failure to notify defense of statements of the accused
Mil. R. Evid. 304(d)(2)(B)
?????
Noncompliance with the discovery requirements
R.C.M. 701(g)(3)(B)
II-59
Examination of witness' prior statement, for purpose of
R.C.M. 914(d)
II-109
Generally
R.C.M. 906(b)(1)
II-95
Speedy trial, effect on
R.C.M. 707
II-72
Controlled substances, offenses involving
IV-54
Convening authority
Accuser
Disqualifications
To convene general or special courts-martial
R.C.M. 504(c)(1)
II-49
To convene summary courts-martial
R.C.M. 1302(a)
II-183
To refer charges to general or special courts-martial
R.C.M. 601(c)
II-53
Subordinate of, disqualified
R.C.M. 504(c)(2)
II-49
Action by._ See_ Action of convening authority.
Censure of court
R.C.M. 104
II-5
Changing members
R.C.M. 505(c)
II-50
Charges and specifications
Authority to change
R.C.M. 603(b)
II-55
Authority to dispose of
R.C.M. 401(a); 403(b); 404; 407
II-31; II-33; II-41
Command influence, unlawful
R.C.M. 104
II-5
Communications with staff judge advocate
R.C.M. 105(a)
II-5
Contempt
Action on
R.C.M. 809(e); 809(f)
II-85
Review of
R.C.M. 809(d)
II-85
Defined
R.C.M. 103(6)
II-1
Delegation of authority as, prohibited
R.C.M. 504(b)(4)
II-49
Deposition, authority to order
R.C.M. 702(b)
II-60
Detailing members
R.C.M. 503(a)
II-47
Disqualification to act as
R.C.M. 504(c); 601(c)
II-49; II-53
Execution of sentences, authority to order
R.C.M. 1113(b); 1113(c)
II-168
General court-martial
Action on certain cases by
R.C.M. 1112(f)
II-167
Constructive condonation of desertion
R.C.M. 907(b)(2)(D)(iii)
II-99
Defined
R.C.M. 504(b)(1)
II-49
Disposition of charges by
R.C.M. 407
II-41
Immunity, authority to grant
R.C.M. 704(c)
II-68
National security matters, duties regarding
R.C.M. 407(b)
II-41
Vacation of suspension, action on
R.C.M. 1109(d)(2)
II-163
Mental capacity or responsibility of accused, inquiry into
R.C.M. 706
II-71
National security, case affecting disposition
R.C.M. 401(d)
II-32
Pretrial agreement, authority to enter
R.C.M. 705(a); 705(d)(4)
II-69; II-71
Pretrial investigation, ordered by
R.C.M. 403(b)(5); 404(e); 405(c);
407(a)(5)
II-33; II-34; II-41
Referral of charges
R.C.M. 403(b)(4); 404(d); 407(a)(4)
II-1
R.C.M. 407(a)(6); 601
II-41; II-53
Special court-martial
Defined
R.C.M. 504(b)(2)
II-49
Disposition of charges by
R.C.M. 404
II-33
Staff judge advocate
Communications with
R.C.M. 105(a)
II-5
Delegation of authority
Excusal of court members
R.C.M. 505(c)(1)(B)
II-50
Generally prohibited
R.C.M. 504(b)(4)
II-49
Successors, included in
R.C.M. 103(6)
II-1
Summary court-martial
Charge sheet, recording receipt
R.C.M. 403(a)
II-32
Defined
R.C.M. 1302(a)
II-183
Disposition of charges by
R.C.M. 403(b)
II-33
Superior authority calling for transmittal of charges from
subordinate
R.C.M. 601(f)
II-54
Superior authority withholding from subordinate the
authority to dispose of charges
R.C.M. 306(a); 401(a)
II-25; II-31
Withdrawal of charges by
Generally
R.C.M. 604
II-55
Pretrial agreement, pursuant to
R.C.M. 705(b)(2)(C)
II-69
Convening courts-martial
_ See also_ Convening authority.
Generally
R.C.M. 504
II-48
Jurisdictional requisite, as a
R.C.M. 201(b)
II-9
Summary courts-martial
R.C.M. 1302
II-183
Convening orders
Amending
R.C.M. 505(b)
II-50
Changing
R.C.M. 505(b)
II-50
Defense, copies to
R.C.M. 701(a)(1)(B)
II-57
Forms
Appendix 6
A6-1
Generally
R.C.M. 504(d)
II-49
Summary court-martial
R.C.M. 1302(c)
II-183
Convictions, prior
Admissibility in aggravation
R.C.M. 1001(b)(3)
II-123
Finality of
R.C.M. 1209
II-179
Impeachment by evidence of
Mil. R. Evid. 609
III-40
Increasing punishment authorized
R.C.M. 1003(d)(1); 1003(d)(2)
II-131
Correctional custody
Nonjudicial punishment
V. Para. 5b(2)(A)(ii); 5b(2)(B)(ii);
V. Para. 5c(4)
V-4; V-5
Offenses against
IV-111
Correction of record of trial
After authentication
R.C.M. 1104(d)
II-149
Before authentication
R.C.M. 1103(i)
II-145
Corroboration of confession
Mil. R. Evid. 304(g)
III-6
Counsel
_ See also_ Defense counsel; Trial counsel.
Appellate
R.C.M. 908(c)(1); 1202
II-100; II-173
Detailing
R.C.M. 503(c)
II-48
General courts-martial
R.C.M. 501(b)
II-43
Special courts-martial
R.C.M. 501(b)
II-43
Summary courts-martial
R.C.M. 1301(e)
II-182
Qualifications of
R.C.M. 502(d)
II-44
Supervision of
R.C.M. 109
II-6
Suspension of
R.C.M. 109
II-6
Counseling commission of offense
IV-1
Countersign, improper use of
IV-38
Court-martial
Defined
R.C.M. 103(8)
II-1
Types of
R.C.M. 201(f)
II-11
Court-martial orders. _ See_ ** Promulgating orders.**
Court of inquiry
Admissibility of evidence taken in
Mil. R. Evid. 804(b)(1)
III-47
Application of Rules for Courts-Martial to
I. Para. 2(b)(3)
I-1
Exercise of jurisdiction
I. Para. 2(b)(3)
I-1
Nonjudicial punishment based on
V. Para. 4d
V-4
Pretrial investigation, substitute for
R.C.M. 405(b)
II-34
Procedure
I. Para. 2(b)(3)
I-1
Subpoena, authority to issue
R.C.M. 703(e)(2)(C)
II-65
Court of Appeals for the Armed Forces
Action on decision by
R.C.M. 1204(c)
II-177
Appeals by United States
R.C.M. 908(c)(3)
II-100
Cases reviewed by
R.C.M. 1204(a)
II-176
Generally
R.C.M. 1204
II-176
Petition by accused to
R.C.M. 1204(b)
II-176
Court of Criminal Appeals
Action on decision by
R.C.M. 1203(c)
II-174
Appeals by United States to
R.C.M. 908(b)(7)
II-100
Armed force of accused as determining which court reviews
R.C.M. 201(e)(5)
II-11
Cases reviewed by
R.C.M. 1203(b)
II-174
Generally
R.C.M. 1203
II-174
Notification to accused of decision
R.C.M. 1203(d)
II-175
Cowardly conduct
IV-33
Crimes
_ See_ Offenses; specific topics.
Crimes and offenses not capital
IV-100
Cross-examination at
Court-martial
Mil. R. Evid. 611
III-41
Deposition
R.C.M. 702(g)(1)(B); 702(g)(2)(C)
II-62
Pretrial investigation
R.C.M. 405(f)(8); 405(h)(1)(A)
II-35; II-38
Cruelty and maltreatment
IV-25
Culpable negligence, defined
IV-65
Custody
Correctional._ See_ Correctional custody.
Defined
IV-29
Escaped from
IV-28
Damage
Military property
IV-47
Nonmilitary property
IV-49
Dangerous weapon, defined
IV-90
_ See also_ Assault.
Death, as punishment
_ See also_ Capital case; Capital offense.
Aiding the enemy
IV-42
Assaulting officer, time of war
IV-21
Countersign, improper use of
IV-38
Desertion, time of war
IV-12
Disobedience of officer, time of war
IV-21
Execution
R.C.M. 1113(c)(3); 1113(e)(1)
II-168
General court-martial, power to adjudge
R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii)
II-11
Generally
R.C.M. 1003(b)(9)
II-129
Mandatory, votes required
R.C.M. 1006(d)(4)(A)
II-136
Misbehavior before enemy
IV-36
Murder
IV-64
Mutiny
IV-28
Procedures for adjudging
R.C.M. 1004
II-131
Rape
IV-68
Safeguard, forcing
IV-39
Sedition
IV-28
Solicitation to desert, mutiny, to commit acts of misbehavior
before the enemy, or to commit sedition
IV-7
Special court-martial, no power to adjudge
R.C.M. 201(f)(2)(B)(i)
II-12
Spying
IV-44
Summary court-martial, no power to adjudge
R.C.M. 1301(d)
II-182
Surrender, subordinate compelling
IV-37
Debt, dishonorably failing to pay
IV-112
Defendant. _ See_ Accused.
Defense counsel
Absence of
R.C.M. 805(c)
II-80
Accused
Inquiry as to rights
R.C.M. 901(d)(4)
II-89
Rights to, generally
R.C.M. 506
II-51
Announcement of
Absence
R.C.M. 813(a)(7)
II-88
Detailing
R.C.M. 503(c)(2)
II-48
Presence
R.C.M. 813(a)(6)
II-88
Qualifications
R.C.M. 901(d)(2)
II-89
Appellate
R.C.M. 1202
II-173
Assistant and associate
Absence of
R.C.M. 805(c)
II-80
Detailing
R.C.M. 501(b); 503(c)
II-43; II-48
Disqualification
R.C.M. 502(d)(4); 502(f)
II-45; II-47
Duties
R.C.M. 502(d)(6)
II-46
Individual counsel, effect of
R.C.M. 506(b)(3)
II-52
Oath
R.C.M. 807(b)(1)
II-83
Qualifications
R.C.M. 502(d)
II-44
Change of
Announcement
R.C.M. 813(c)
II-88
Grounds
R.C.M. 505(d)(2); 506(b)(3); 506(c)
II-51; II-52
Procedure
R.C.M. 505(b)
II-50
Civilian
Accused's right to
Appellate review
R.C.M. 1202
II-173
Court-martial
R.C.M. 506
II-51
During interrogation
Mil. R. Evid. 305(d)(2)
?????
Pretrial confinement
R.C.M. 305(e)(3)
II-22
Pretrial investigation
R.C.M. 405(d)(2)(C)
II-35
Advice to accused at trial concerning right to
R.C.M. 901(d)(4)(A)
II-89
Disqualification, action on
R.C.M. 901(d)(3)
II-89
Qualifications
R.C.M. 502(d)(3)
II-44
Deposition, detailed or assigned for
R.C.M. 702(d)(2)
II-61
Detailed
Accused's right to
R.C.M. 506(a)
II-51
Change of
R.C.M. 505(a); 505(b); 505(d)(2)
II-50; II-51
Defined
R.C.M. 103(10)
II-1
Different armed force, counsel from
R.C.M. 503(c)(3)
II-48
Disqualification, action on
R.C.M. 901(d)(3)
II-89
Duties
R.C.M. 502(d)(6)
II-46
Excusal
R.C.M. 505(d)(2); 506(c)
II-51; II-52
General court-martial
R.C.M. 501(b)
II-43
Individual military counsel, effect of
Generally
R.C.M. 506(b)(3)
II-52
Investigation, pretrial
R.C.M. 405(d)(2)(B)
II-34
Investigation, pretrial, right to
R.C.M. 405(d)(2)(A)
II-34
Motion to retain
Generally
R.C.M. 506(b)(3)
II-52
Preserved for record
R.C.M. 906(b)(2)
II-95
When made
R.C.M. 905(b)(6)
II-93
Orders
R.C.M. 503(c)(2)
II-48
Pretrial confinement, right to
R.C.M. 305(f)
II-22
Qualifications of
R.C.M. 502(d)(1)
II-44
Special court-martial
R.C.M. 501(b)
II-43
Withdrawal
R.C.M. 505(d)(2)(B); 506(c)
II-51; II-52
Disqualification
R.C.M. 502(d)(4); 901(d)(3)
II-45; II-89
Duties
R.C.M. 502(d)(6)
II-46
Evaluation of
R.C.M. 104(b)(1)
II-5
Identification, right to at
Mil. R. Evid. 321(b)(2)
III-17
Individual military counsel
Accused's right to request
R.C.M. 506(a)
II-51
Advice at trial to accused concerning right to
R.C.M. 901(d)(4)
II-89
Attorney-client relationship affecting right to
R.C.M. 506(b)(2)
II-52
Availability to act as
R.C.M. 506(b)(1); 506(b)(2)
II-51; II-52
Detailed counsel, excusal of
R.C.M. 506(b)(3)
II-52
Investigation, pretrial, right to at
R.C.M. 405(d)(2)(B)
II-34
Motion on request for
R.C.M. 905(b)(6)
II-93
Pretrial confinement, no right to
R.C.M. 305(f)
II-22
Request for
R.C.M. 506(b)(2)
II-52
Qualifications of
R.C.M. 502(d)(3)
II-44
Interrogation, right to
Mil. R. Evid. 305(d); 305(e)
III-7
Member, ineligible to serve as
R.C.M. 912(f)(1)(E)
II-106
Military judge, disqualified to act as
R.C.M. 902(b)(2)
II-90
Nonlawyer presence at counsel table
R.C.M. 506(e)
II-52
Oath
Announcement of status as to
R.C.M. 901(d)(2)
II-89
Generally
R.C.M. 807(b)
II-83
Requirement to take
R.C.M. 901(d)(5)
II-90
Post-trial duties
R.C.M. 502(d)(6)
II-46
Presence of
Article 39(a) sessions
R.C.M. 803
II-78
Findings announcement
R.C.M. 922(a)
II-121
Generally
R.C.M. 805
II-80
Pretrial conferences
R.C.M. 802
II-77
Sentence announcement
R.C.M. 1007(a)
II-136
Pretrial agreement, waiver not permitted
R.C.M. 705(c)(1)(B)
II-70
Pretrial confinement, right to
R.C.M. 305(f)
II-22
Privileged communications
Mil. R. Evid. 502
III-22
Summary courts-martial, right to
R.C.M. 1301(e)
II-182
Waiver of appellate review, right to consult with
R.C.M. 1110(b)(2)
II-164
Waiver of right to, in courts-martial
R.C.M. 506(d)
II-52
Withdrawal of appellate review, right to consult with
R.C.M. 1110(b)(3)
II-164
Defense of another
R.C.M. 916(e)(5)
II-113
Defenses
Accident
R.C.M. 916(f)
II-113
Alibi, notice of
R.C.M. 701(b)(2)
II-58
Burden of proof
R.C.M. 916(b)
II-111
Coercion
R.C.M. 916(h)
II-113
Defense of another
R.C.M. 916(e)(5)
II-113
Defined
R.C.M. 916(a)
II-111
Duress
R.C.M. 916(h)
II-113
Entrapment
R.C.M. 916(g)
II-113
Generally
R.C.M. 916
II-111
Ignorance of fact
R.C.M. 916(j)
II-113
Ignorance of law
R.C.M. 916(l)(1)
II-115
Inability
R.C.M. 916(i)
II-113
Instructions on
R.C.M. 920(e)(3)
II-119
Justification
R.C.M. 916(c)
II-111
Lack of mental responsibility
Generally
R.C.M. 916(k)
II-114
Notice of
R.C.M. 701(b)(2)
II-58
Mistake of fact
R.C.M. 916(j)
II-113
Mistake of law
R.C.M. 916(l)(1)
II-115
Obedience to orders
R.C.M. 916(d)
II-111
Self-defense
R.C.M. 916(e)
II-112
Voluntary intoxication
R.C.M. 916(l)(2)
II-115
Withdrawn, effect of notice
R.C.M. 701(b)(5)
II-59
Deferment of confinement
Action of convening authority
R.C.M. 1107(f)(4)(E)
II-159
Contempt cases
R.C.M. 809(e)
II-85
Generally
R.C.M. 1101(c)
II-139
Orders
R.C.M. 1101(c)(4); 1114(c)(1)
II-139; II-170
Termination of
R.C.M. 1101(c)(6)
II-140
Defraud
_ See also_ Fraud.
Burning with intent to
IV-107
Degrading questions
Mil. R. Evid. 303
III-4
Delay
_ See also_ Continuances.
Government appeals
R.C.M. 908(b)(1)
II-99
Responsibility for, as offense
IV-32
Speedy trial
R.C.M. 707(c)
II-73
Delegation
Authority to impose pretrial restraint
R.C.M. 304(b)(3)
II-20
Convening courts-martial, power to
R.C.M. 504(b)(4)
II-49
Excusal of members
R.C.M. 505(c)(1)(B)
II-50
Nonjudicial punishment
V. Para. 2c
V-2
Deliberations and voting
Capital cases
R.C.M. 1004(b)(7)
II-132
Findings
R.C.M. 921
II-119
Interlocutory questions, special court-martial without military
judge
R.C.M. 801(e)(3)
II-76
Military judge, presence during
R.C.M. 805(a)
II-80
Privilege protecting
Mil. R. Evid. 509
III-36
Exceptions to
Mil. R. Evid. 606
III-39
Sentencing
R.C.M. 1006
II-135
Delivering less than amount called for by receipt
IV-96
Deposition
Admissibility of
Mil. R. Evid. 804(b)(1);
R.C.M. 1001(b)(4)
III-47; ???
Generally
R.C.M. 702
II-60
Objections
R.C.M. 702(h)
II-62
Officer
R.C.M. 702(d)(1); 702(f)
II-61
Oral
R.C.M. 702(g)(1); 702(h)(2)
II-62; II-63
Procedure
R.C.M. 702(g)
II-62
Request for
R.C.M. 702(c)
II-60
Who may order
R.C.M. 702(b)
II-60
Witnesses, subpoena
Art. 47, UCMJ; Appendix 7
A2-14; A7-1
Written
R.C.M. 702(g)(2); 702(h)(3)
II-62; II-63
Dereliction in the performance of duty
IV-23
Desertion
Apprehend deserter, authority to
R.C.M. 302(b)(3)
II-18
Attempted
IV-5; IV-10
Generally
IV-10
Solicitation to commit
IV-7
Destroying
IV-122
Military property
IV-47
Nonmilitary property
Offense
IV-49
Reparation for
Art. 139, UCMJ
A2-36
Detail
Bailiff
R.C.M. 501(c)
II-43
Clerk
R.C.M. 501(c)
II-43
Defense counsel
R.C.M. 501(b); 503(c)
II-43; II-48
Defined
R.C.M. 103(10)
II-1
Escort
R.C.M. 501(c)
II-43
Interpreter
R.C.M. 501(c)
II-43
Members
R.C.M. 503(a)
II-47
Military judge
R.C.M. 503(b)
II-48
Orderly
R.C.M. 501(c)
II-43
Orders
Amending
R.C.M. 505(b)
II-50
Appointing counsel
R.C.M. 503(c)(2)
II-48
Appointing military judge
R.C.M. 503(b)(2)
II-48
Convening
R.C.M. 504(d)
II-49
Reporter
R.C.M. 501(c)
II-43
Trial counsel
R.C.M. 501(b); 503(c)
II-43; II-48
Detention, unlawful
IV-32
Discharge
_ See also_ Bad-conduct discharge; Dishonorable discharge.
Effecting fraudulent
IV-9
Firearms
Negligent
IV-117
Willful
IV-117
Fraudulent
IV-8
Disclosure and discovery
Aggravating circumstances, notice in capital cases
R.C.M. 1004(b)(1)
II-131
Alibi defense
R.C.M. 701(b)(2)
II-58
Amending orders
R.C.M. 701(a)(1)(B)
II-57
Charges, papers, accompanying
R.C.M. 701(a)(1)(A)
II-57
Classified or privileged government information, intent to
disclose at trial
Mil. R. Evid. 505(h); 506(h)
III-27; III-32
Continuing duty
R.C.M. 701(d)
II-59
Convening orders
R.C.M. 701(a)(1)(B)
II-57
Convictions, prior
Accused, used against
R.C.M. 701(a)(4); 701(a)(5)(A)
II-57
Witnesses, impeachment by convictions older than 10
years, intent to use
Mil. R. Evid. 609(b)
III-40
Defense, disclosure by, generally
R.C.M. 701(b)
II-58
Defense, intent to use insanity
R.C.M. 701(b)(2)
II-58
Defense, withdrawn, inadmissibility
R.C.M. 701(b)(5)
II-59
Deposition, witness statements
R.C.M. 702(g)(1)(B)
II-62
Documents
In defense possession
R.C.M. 701(b)(3)
II-58
In government possession
R.C.M. 701(a)(2)(A)
II-57
Evidence
Access to
R.C.M. 701(e)
II-59
Favorable to defense
R.C.M. 701(a)(6)
II-57
Prior identifications of the accused
Mil. R. Evid. 321(c)(1)
III-17
Seized from the accused
Mil. R. Evid. 311(d)(1)
III-9
Examinations, physical
In defense possession
R.C.M. 701(b)(4)
II-58
In government possession
R.C.M. 701(a)(2)(B)
II-57
Foreign law, intent to request judicial notice of
Mil. R. Evid. 201A(b)
?????
Mental examinations
In defense possession
R.C.M. 701(b)(4)
II-58
In government possession
R.C.M. 701(a)(2)(B)
II-57
Psychotherapist-patient privilege
Mil. R. Evid. 513
III-37
Statements of accused related to
R.C.M. 706(c)(5); Mil. R. Evid. 302
II-72; III-4
Military judge, regulation of
R.C.M. 701(g)
II-59
Military Rules of Evidence, pursuant to
Evidence seized from the accused
Mil. R. Evid. 311(d)(1)
III-9
Prior identifications of the accused
Mil. R. Evid. 321(c)(1)
III-17
Statements of the accused
Mil. R. Evid. 304(d)(1)
?????
Motion relating to
Generally
R.C.M. 906(b)(7)
II-96
Waiver
R.C.M. 905(e)
II-94
When made
R.C.M. 905(b)(4)
II-93
Noncompliance, remedy for
R.C.M. 701(g)(3)
II-59
Objects
In defense possession
R.C.M. 701(b)(3)
II-58
In government possession
R.C.M. 701(a)(2)(A)
II-57
Orders, protective
R.C.M. 701(g)(2)
II-59
Photographs
In defense possession
R.C.M. 701(b)(3)
II-58
In government possession
R.C.M. 701(a)(2)(A)
II-57
Preparation for trial, opportunity
R.C.M. 701(e)
II-59
Prior statements of witnesses
R.C.M. 914
II-109
Privileged information
R.C.M. 701(f)
II-59
_ See also_ **Evidence,** Privileges.
Psychiatric experts, intent to use
R.C.M. 701(b)(2); Mil. R. Evid. 513
II-58; III-37
Psychotherapist-patient privilege
Mil. R. Evid. 513
III-37
Regulation of
R.C.M. 701(g)
II-59
Remedy for noncompliance
R.C.M. 701(g)(3)
II-59
Sexual behavior of victim, intent to offer evidence of
Mil. R. Evid. 412(c)
III-21
Statements relating to an offense
R.C.M. 701(a)(1)(C)
II-57
Statements of the accused
Mil. R. Evid. 304(d)(1)
?????
Tests
In defense possession
R.C.M. 701(b)(4)
II-58
In government possession
R.C.M. 701(a)(2)(B)
II-57
Trial counsel, disclosure by, generally
R.C.M. 701(a)
II-57
Witnesses
Access to
R.C.M. 701(e)
II-59
Accused's limited testimony on motion, intent to use
Mil. R. Evid. 304(f); 311(f); 321(e)
III-5; ???; III-18
Alibi, defense
R.C.M. 701(b)(2)
II-58
Failure to call
R.C.M. 701(c)
II-59
Merits
R.C.M. 701(a)(3)(A)
II-57
Prior statements of
R.C.M. 914
II-109
Psychiatric experts
R.C.M. 701(b)(2); Mil. R. Evid. 513
II-58; III-37
Psychotherapist-patient privilege
Mil. R. Evid. 513
III-37
Rebuttal
R.C.M. 701(a)(3)(B)
II-57
Sentencing
R.C.M. 701(a)(5)(B)
II-57
Work product of counsel
R.C.M. 701(f)
II-59
Discredit, conduct of a nature to bring on armed forces
IV-101
Dishonorable discharge
Death, included in sentence of
R.C.M. 1004(e)
II-134
Execution of
R.C.M. 1113(c)(1)
II-168
General courts-martial, power to adjudge
R.C.M. 201(f)(1)(A)(ii)
II-11
Generally
R.C.M. 1003(b)(8)(B)
II-128
Previous convictions authorizing
R.C.M. 1003(d)(1)
II-131
Special courts-martial, no power to adjudge
R.C.M. 201(f)(2)(B)(i)
II-12
Summary courts-martial, no power to adjudge
R.C.M. 1301(d)
II-182
Dishonorably failing to maintain funds
IV-107
Dishonorably failing to pay debt
IV-112
Disloyal statements
IV-113
Dismissal
Charges._ See_ Charges and specifications.
Punishment
Death, included in sentence of
R.C.M. 1004(e)
II-134
Execution of
R.C.M. 1113(c)(2)
II-168
General courts-martial, power to adjudge
R.C.M. 201(f)(1)(A)(ii)
II-11
Generally
R.C.M. 1003(b)(8)(A)
II-128
Special courts-martial, no power to adjudge
R.C.M. 201(f)(2)(B)(i)
II-12
Disobedience of orders
Failure to obey
IV-23
Willful
Commissioned officer
IV-19
Noncommissioned, petty, or warrant officer
IV-21
Disorderly conduct
IV-113
Disposition of charges, generally
R.C.M. 401
II-31
Disposition of military property, wrongful
IV-47
Disposition of offenses, generally
R.C.M. 306
II-25
Disposition of record of trial after action
R.C.M. 1111
II-166
Disqualification
_ See also_ specific topics.
Discovery of, as to detailed personnel
R.C.M. 502(f)
II-47
Disrespect
Defined
IV-18
Sentinel or lookout
IV-130
Superior commissioned officer
IV-17
Noncommissioned, petty, or warrant officer
IV-21
Distribution of controlled substances
IV-54
Docketing
R.C.M. 801(a)(1)
II-75
Documents
Authentication requirement
Mil. R. Evid. 901
III-48
False
IV-46
Hearsay exceptions, declarant unavailable
Mil. R. Evid. 804
III-46
Hearsay exceptions, generally
Mil. R. Evid. 803
III-44
Hearsay inadmissible
Mil. R. Evid. 802
III-44
Original needed
Mil. R. Evid. 1002
III-50
Self-authentication
Mil. R. Evid. 902
III-49
Double jeopardy. _ See_ ** Former jeopardy.**
Draft, share or bank. _ See_ ** Checks.**
Drinking liquor with prisoner
IV-114
Driving, drunken or reckless
IV-51
Drugs
Inspection for
Mil. R. Evid. 313(b)
III-11
Offenses involving illegal
IV-54
Drunk
_ See also_ Intoxication.
And disorderly
IV-113
Defined
IV-53
Driving
IV-51
On duty
IV-54
On station
IV-113
Prisoner
IV-114
Sentinel or lookout
IV-57
Drunkenness, incapacitation for performance of duties
through
IV-114
Dueling
IV-59
Dupliciousness, in charging
_ See also_ Charges and specifications.
Motion to sever
R.C.M. 906(b)(5)
II-96
Duress
R.C.M. 916(h)
II-113
Duty
Defined
IV-54
Dereliction in the performance of
IV-23
Drunk on
IV-54
Going from place of
IV-13
To obey orders
IV-24
Dying declarations
Mil. R. Evid. 804(b)(2)
III-47
Eavesdropping
Mil. R. Evid. 317
III-16
Effecting unlawful enlistment, appointment, or separation
IV-9
Efficiency reports, members, military judge, counsel
R.C.M. 104(b)
II-5
Elements of offense
_ See also_ specific offenses.
Instruction on
R.C.M. 920(e)(1); 920(e)(2)
II-119
Lesser included offenses
IV-3
Specification, alleging
R.C.M. 307(c)(1); 307(c)(3)
II-27
Embezzlement
IV-74
Emergency searches
Mil. R. Evid. 314(i)
III-14
Endangering command, unit, place, or military property
IV-33
Enemy
Aiding
IV-41
Commission, military, jurisdiction over
I. Para. 2(b)(2); R.C.M. 201(f)(1)(B)
???;???
Communicating with
IV-41
Confinement with
Art. 12, UCMJ
A2-4
Defined
IV-34
Failing to engage
IV-33
Military government, subject to
I. Para. 2(a)(3)
I-1
Misbehavior before
IV-33
Prisoner in hands of, misconduct
IV-42
Property taken from
IV-39
Running away before
IV-33
Spying
IV-43
Enlisted persons
Detailed to serve as court members
R.C.M. 503(a)(2)
II-47
Request by accused for court members
R.C.M. 503(a)(2)
II-47
Restraint of, who may order
R.C.M. 304(b)
II-20
Unit, same as accused for court members
R.C.M. 912(f)(1)(A); 912(f)(4)
II-106
Enlistment
Constructive
Art. 2(c), UCMJ
A2-2
Desertion, effect
IV-11
Fraudulent
IV-8
Unlawful, effecting
IV-9
Entrapment
R.C.M. 916(g)
II-113
Entry, unlawful
IV-134
Escalator clause
R.C.M. 1003(d)
II-131
Escape
Assisting another to
IV-3
Confinement
IV-28
Correctional custody
IV-111
Custody
IV-28
Prisoner of war
IV-41
Suffering prisoner to
IV-31
Escort
Designation by military judge
R.C.M. 913(c)(3)
II-108
Detailing
R.C.M. 501(c)
II-43
Disqualification
R.C.M. 502(e)(2); 502(f)
II-47
Duties
R.C.M. 502(e)(3)(C); 913(c)(3)
II-47; II-108
Oath
R.C.M. 807(b)
II-83
Qualifications
R.C.M. 502(e)(1)
II-47
Views and inspections
R.C.M. 913(c)(3)
II-108
Espionage
IV-43
IV-43
Solicitation to commit
IV-131
Evidence
_ See also_ Search and seizure; Self-incrimination
Absence of entry in records
Mil. R. Evid. 803(7)
III-45
Absence of public record or entry
Mil. R. Evid. 803(10)
III-45
Access to
R.C.M. 701(e)
II-59
Accident, evidence of other crimes, wrongs, or acts to prove
absence of
Mil. R. Evid. 404(b)
III-19
Accused
Character of
Mil. R. Evid. 404(a)(1)
III-19
Favorable to, disclosure by trial counsel
R.C.M. 701(a)(6)
II-57
Testimony by, concerning admissibility of an admission
or confession
Mil. R. Evid. 304(f)
III-5
Testimony by, concerning admissibility of evidence
obtained from an unlawful search or seizure
Mil. R. Evid. 311(f)
?????
Testimony by, concerning admissibility of eyewitness
identification evidence
Mil. R. Evid. 321(e)
III-18
Testimony upon preliminary matter, generally
Mil. R. Evid. 104(d)
III-2
Adjudicative facts
Mil. R. Evid. 201
III-2
Admissibility
Effect of relevancy upon
Mil. R. Evid. 402; 403
III-18; III-19
Erroneous rulings, effect of
Mil. R. Evid. 103(a)
III-1
For limited purpose
Mil. R. Evid. 105
III-2
Motion as to
R.C.M. 906(b)(13)
II-97
Preliminary determinations concerning
Mil. R. Evid. 104(a)
III-1
Admissions._ See_ Self-Incrimination.
Affidavits
Mil. R. Evid. 405(c)
III-19
Amendments to the Military Rules of Evidence
Mil. R. Evid. 1102
III-51
Analysis of the Military Rules of Evidence
Appendix 22
A22-1
Ancient documents
Mil. R. Evid. 803(16)
III-46
Annulment of conviction, effect on impeachment
Mil. R. Evid. 609(c)
III-41
Appeal, effect on impeachment by evidence of conviction
Mil. R. Evid. 609(e)
III-41
Applicability of rules
Military Rules of Evidence
Mil. R. Evid. 101(a); 1101(a)
III-1; III-51
Other evidentiary rules
Mil. R. Evid. 101(b)
III-1
Attorney-client privilege
Mil. R. Evid. 502
III-22
Authentication and identification
Attesting certificates
Mil. R. Evid. 902(4a)
III-49
Generally
Mil. R. Evid. 901(a)
III-48
Illustrations of
Mil. R. Evid. 901(b)
III-48
Self-authentication
Mil. R. Evid. 902
III-49
Subscribing witness' testimony unnecessary
Mil. R. Evid. 903
III-50
Availability of a witness, determination of
Mil. R. Evid. 104(a)
III-1
Baptismal certificates
Mil. R. Evid. 803(12)
III-45
Best evidence rule._ See_ Contents of writings, recordings, and
photographs, this heading.
Bias or prejudice
Compromise and offer to compromise, admissibility to
prove
Mil. R. Evid. 408
III-20
Evidence of bias to impeach
Mil. R. Evid. 608(c)
III-40
Exclusion of unfairly prejudicial evidence
Mil. R. Evid. 403
III-19
Burden of proof._ See_ Burden of proof.
Business entries
Mil. R. Evid. 803(6)
III-45
Certificate of rehabilitation, effect on impeachment
Mil. R. Evid. 609(c)
III-41
Chaplain, privileged communications to
Mil. R. Evid. 503
III-23
Character
Evidence of similar sexual crimes
Mil. R. Evid 413; 414
III-21; III-22
Inadmissibility to prove conduct; exceptions
Mil. R. Evid. 404
III-19
Methods of proving
Mil. R. Evid. 405
III-19
Circumstantial
R.C.M. 918(c)
II-117
Classified information, privilege concerning
Mil. R. Evid. 505
III-25
Clergyman
Defined
Mil. R. Evid. 503(b)(1)
III-24
Privileged communications to
Mil. R. Evid. 503(a)
III-23
Co-accused, statements at joint trial
Mil. R. Evid. 306
III-8
Co-conspirator, statements of
Mil. R. Evid. 801(d)(2)
III-44
Commercial publications
Mil. R. Evid. 803(17)
III-46
Common law rules, applicability
Mil. R. Evid. 101(b)(2)
III-1
Competency
Court members as witnesses
Mil. R. Evid. 606
III-39
Military judge as witness
Mil. R. Evid. 605
III-39
Witnesses, generally
Mil. R. Evid. 601
III-39
Compromise and offer to compromise
Mil. R. Evid. 408
III-20
Concealing, as grounds for being accessory after the fact
IV-3
Confessions._ See_ Self-Incrimination.
Confidential or privileged communications._ See_ Privileges,
this heading.
Confusion of the issues, as grounds for, excluding relevant
evidence
Mil. R. Evid. 403
III-19
Conspiracy, statement of co-conspirator
Mil. R. Evid. 801(d)(2)
III-44
Contents of writings, recordings, and photographs
Admissibility of duplicates
Mil. R. Evid. 1003
III-50
Admissibility of other evidence as proof
Mil. R. Evid. 1004
III-50
Determination of fact issues related to
Mil. R. Evid. 1008
III-51
Proof by testimony or written admission of party
Mil. R. Evid. 1007
III-50
Public records
Mil. R. Evid. 1005
III-50
Requirement of an original
Mil. R. Evid. 1002
III-50
Summaries
Mil. R. Evid. 1006
III-50
Continuance, determination by military judge
Mil. R. Evid. 104(a)
III-1
Control, proof by subsequent remedial measures
Mil. R. Evid. 407
III-20
Conviction of crime, impeachment by
Mil. R. Evid. 609
III-40
Corroboration
Confessions or admissions
Mil. R. Evid. 304(g)
III-6
Witness' prior identification to corroborate in-court
identification
Mil. R. Evid. 321(a)(1)
?????
Court-martial, power to obtain evidence
R.C.M. 801(c)
II-75
Credibility or weight, right to introduce evidence concerning
Mil. R. Evid. 104(e)
III-2
Cross-examination
Scope
Mil. R. Evid. 611(b)
III-41
Specific incidents of conduct to impeach
Mil. R. Evid. 608(b)
III-40
Cumulative, as grounds for excluding relevant evidence
Mil. R. Evid. 403
III-19
Death, statement under belief of impending
Mil. R. Evid. 804(b)(2)
III-47
Declarant
Attacking and supporting credibility of
hearsay declarant
Mil. R. Evid. 806
III-47
Defined
Mil. R. Evid. 801(b)
III-44
Unavailability
Mil. R. Evid. 804(a)
III-47
Degrading questions
Mil. R. Evid. 303
III-4
Deliberations of courts and juries, privilege concerning
Mil. R. Evid. 509; 606
III-36; III-40
Disclosure, required
Evidence of prior identification of the accused
Mil. R. Evid. 321(c)(1)
III-17
Evidence seized from the person or property of the
accused
Mil. R. Evid. 311(d)(1)
III-9
Immunity or leniency granted to a witness
Mil. R. Evid. 301(c)(2)
?????
Statements by accused
Mil. R. Evid. 304(d)(1)
?????
Divorce or annulment, effect on husband-wife privilege
Mil. R. Evid. 504(c)(1)
III-24
Duplicate
Admissibility of
Mil. R. Evid. 1003
III-50
Defined
Mil. R. Evid. 1001(4)
?????
Dying declaration
Mil. R. Evid. 804(b)(2)
III-47
Excited utterance
Mil. R. Evid. 803(2)
III-44
Exclusionary rules; _ See also_ Privileges, this heading;
**Search and seizure; Self-incrimination.**
Eyewitness identification
Mil. R. Evid. 321(a)(2)
?????
Exclusion of, noncompliance with discovery requirements
R.C.M. 701(g)(3)(C)
II-59
Existing mental, emotional, or physical condition
Mil. R. Evid. 803(3)
III-44
Experts
Appointment by court
Mil. R. Evid. 706
III-43
Bases of opinion by
Mil. R. Evid. 703
III-43
Disclosure of facts or data underlying opinion
Mil. R. Evid. 705
III-43
Employment at government expense
R.C.M. 703(d)
II-64
Opinion on ultimate issue
Mil. R. Evid. 704
III-43
Selection and employment by accused
Mil. R. Evid. 706(c)
III-43
Use, generally
Mil. R. Evid. 702
III-43
Extenuation and mitigation
R.C.M. 1001(c)(1)(A); 1001(c)(1)(B)
II-125
Eyewitness identification
Mil. R. Evid. 321
III-16
Facts, judicial notice of
Mil. R. Evid. 201
III-2
Family records
Mil. R. Evid. 803(13)
III-46
Feasibility of precautionary measures, proof by subsequent
remedial measures
Mil. R. Evid. 407
III-20
Foreign law, judicial notice of
Mil. R. Evid. 201A(b)
?????
Former testimony
Mil. R. Evid. 804(b)(1)
III-47
Government information, privilege concerning
Mil. R. Evid. 506
III-30
Habit
Mil. R. Evid. 406
III-19
Hearsay
Defined
Mil. R. Evid. 801
III-44
General rule
Mil. R. Evid. 802
III-44
Exceptions, availability of declarant immaterial
Absence of entry in records
Mil. R. Evid. 803(7)
III-45
Absence of public record of entry
Mil. R. Evid. 803(10)
III-45
Excited utterance
Mil. R. Evid. 803(2)
III-44
Family records
Mil. R. Evid. 803(13)
III-46
Government price lists
Mil. R. Evid. 803(17)
III-46
Judgment as to personal, family, or general
history, or boundaries
Mil. R. Evid. 803(23)
III-46
Judgment of previous conviction
Mil. R. Evid. 803(22)
III-46
Learned treatises
Mil. R. Evid. 803(18)
III-46
Market reports, commercial publications
Mil. R. Evid. 803(17)
III-46
Marriage, baptismal, and similar certificates
Mil. R. Evid. 803(12)
III-45
Other exceptions
Mil. R. Evid. 803(24)
?????
Present sense impressions
Mil. R. Evid. 803(1)
III-44
Public records and reports
Mil. R. Evid. 803(8)
III-45
Recorded recollection
Mil. R. Evid. 803(5)
III-44
Records of documents affecting an
interest in property
Mil. R. Evid. 803(14)
III-46
Records of regularly conducted activity
Mil. R. Evid. 803(6)
III-45
Records of religious organizations
Mil. R. Evid. 803(11)
III-45
Records of vital statistics
Mil. R. Evid. 803(9)
III-45
Reputation as to character
Mil. R. Evid. 803(21)
III-46
Reputation concerning boundaries or general history
Mil. R. Evid. 803(20)
III-46
Reputation concerning personal or family history
Mil. R. Evid. 803(19)
III-46
Statements for purposes of medical diagnosis or
treatment
Mil. R. Evid. 803(4)
III-44
Statements in ancient documents
Mil. R. Evid. 803(16)
III-46
Statements in documents affecting an interest in
property
Mil. R. Evid. 803(15)
III-46
Then existing mental, emotional or physical condition
Mil. R. Evid. 803(3)
III-44
Exceptions, declarant unavailable
Former testimony
Mil. R. Evid. 804(b)(1)
III-47
Other exceptions
Mil. R. Evid. 804(b)(5)
III-47
Statement against interest
Mil. R. Evid. 804(b)(3)
III-47
Statement of personal or family history
Mil. R. Evid. 804(b)(4)
III-47
Statement under belief of impending death
Mil. R. Evid. 804(b)(2)
III-47
Hearsay within hearsay
Mil. R. Evid. 805
III-47
History, statement of personal or family
Mil. R. Evid. 804(b)(4)
III-47
Husband-wife, privilege
Mil. R. Evid. 504
III-24
Identification
Evidence of other crimes, wrongs, or acts as proof of
Mil. R. Evid. 404(b)
III-19
Eyewitness testimony as to
Mil. R. Evid. 321
III-16
Statements of, as non-hearsay
Mil. R. Evid. 801(d)(1)
III-44
Immunity
R.C.M. 704
II-68
_ See also_ **Self-incrimination.**
Impeachment
By contradiction, using certain involuntary statements
Mil. R. Evid. 304(b)
III-5
By contradiction, using illegally seized evidence
Mil. R. Evid. 311(b)
III-8
Evidence of character, conduct, and bias
Mil. R. Evid. 608
III-40
Evidence of criminal conviction
Mil. R. Evid. 609
III-40
Juvenile adjudications
Mil. R. Evid. 609(d)
III-41
Prior statements of witnesses
Mil. R. Evid. 613
III-42
Religious beliefs or opinions
Mil. R. Evid. 610
III-41
Subsequent remedial measures
Mil. R. Evid. 407
III-20
Who may impeach
Mil. R. Evid. 607
III-40
Informant, identity of, privilege
Mil. R. Evid. 507
III-35
Insanity
Mil. R. Evid. 302; R.C.M. 916(k)
III-4; ???
Intent, evidence of other crimes, wrongs, or acts, as proof of
Mil. R. Evid. 404(b)
III-19
Interest, statement against
Mil. R. Evid. 804(b)(3)
III-47
Interpreters
Mil. R. Evid. 604
III-39
Interrogation._ See_ Self-incrimination.
Involuntary statement._ See_ ** Self-incrimination.**
Joint clients, effect on lawyer-client privilege
Mil. R. Evid. 502(d)(5)
III-23
Joint trial, statements of accused at
Mil. R. Evid. 306
III-8
Judgment
As to personal, family, or general history, or boundaries
Mil. R. Evid. 803(23)
III-46
Previous conviction
Mil. R. Evid. 803(22)
III-46
Judicial notice
Adjudicative facts
Mil. R. Evid. 201
III-2
Laws, domestic and foreign
Mil. R. Evid. 201A
?????
Statements in learned treatises
Mil. R. Evid. 803(18)
III-46
Juvenile adjudications, impeachment by
Mil. R. Evid. 609(d)
III-41
Knowledge
Evidence of other crimes, wrongs, or acts as proof of
Mil. R. Evid. 404(b)
III-19
Requirement for personal knowledge in order to testify
Mil. R. Evid. 602
III-39
Law, domestic, judicial notice of
Mil. R. Evid. 201A(a)
?????
Law enforcement personnel, records and reports of
observations
Mil. R. Evid. 803(8)(B)
III-45
Lawyer-client privilege
Mil. R. Evid. 502
III-22
Lawyer, defined for purposes of privilege
Mil. R. Evid. 502(b)(2)
III-23
Learned treatises
Mil. R. Evid. 803(18)
III-46
Liability insurance, admissibility
Mil. R. Evid. 411
III-20
Limited admissibility of
Mil. R. Evid. 105
III-2
Lineups and other identification processes
Right to counsel at
Mil. R. Evid. 321(b)(2)
III-17
When unlawful
Mil. R. Evid. 321(b)
III-17
Market reports
Mil. R. Evid. 803(17)
III-46
Marriage certificates
Mil. R. Evid. 803(12)
III-45
Medical diagnosis or treatment, statement for purposes of
Mil. R. Evid. 803(4)
III-44
Members
As witnesses
Mil. R. Evid. 606
III-40
Hearings out of presence of
Mil. R. Evid. 103(c); 104(c)
III-1; III-2
Mental examination of accused, privilege concerning.
_ See_ **Self-incrimination.**
Military judge
As witness
Mil. R. Evid. 605
III-39
Defined
Mil. R. Evid. 101(c)
III-1
Military records, authentication by attesting certificates
Mil. R. Evid. 902(4_ a_)
III-49
Minister, privileged communication to
Mil. R. Evid. 503
III-23
Misconduct, acts of, admissibility
Mil. R. Evid. 404(b)
III-19
Mistake, admissibility of evidence of other crimes,
wrongs, or acts to prove absence of
Mil. R. Evid. 404(b)
III-19
Mistrial, as remedy for
Failing to produce a writing used to refresh memory
Mil. R. Evid. 612
III-42
Sustaining a claim of governmental privilege
Mil. R. Evid. 505(i)(4)(E)(ii)
?????
Motive, evidence of other crimes, wrongs,
or acts as proof of
Mil. R. Evid. 404(b)
III-19
Negligence, proof of subsequent remedial measures
Mil. R. Evid. 407
III-20
Negotiations on plea, admissibility
Mil. R. Evid. 410
III-20
Newly discovered, as grounds for new trial
R.C.M. 1210(f)
II-180
Nonconsensual sexual offenses, defined
Mil. R. Evid. 412(e)
III-21
Oath or affirmation
Interpreters
Mil. R. Evid. 604
III-39
Witnesses
Mil. R. Evid. 603
III-39
Objections
Confessions and admissions, concerning
Mil. R. Evid. 304(a); 304(d)(2)
III-4; ???
Eyewitness identification, concerning
Mil. R. Evid. 321(a)(1); 321(d)
???; III-17
Generally
Mil. R. Evid. 103(a)(1)
III-1
Member as a witness
Mil. R. Evid. 606(a)
III-40
Prior identification of the accused
Mil. R. Evid. 321(c)(2)
III-17
Search and seizure, concerning
Mil. R. Evid. 311(a)(1); 311(d)(2)
III-8; III-9
Witnesses, calling by military judge or members
Mil. R. Evid. 614(c)
III-42
Offer of proof
Record of
Mil. R. Evid. 103(b)
III-1
Requirements of valid
Mil. R. Evid. 103(a)(2)
III-1
Ruling by military judge
Mil. R. Evid. 103(b)
III-1
Offer to compromise
Mil. R. Evid. 408
III-20
Official records
Mil. R. Evid. 803(8)
III-45
Opinion
Bases of expert opinion
Mil. R. Evid. 703
III-43
Character, as method for proving
Mil. R. Evid. 405(a)
III-19
Disclosure of facts or data underlying opinion
Mil. R. Evid. 705
III-43
Expert testimony
Mil. R. Evid. 702
III-43
Lay witness testimony
Mil. R. Evid. 701
III-43
Rehabilitative potential of accused
R.C.M. 1001(b)(5)
II-124
Sexual behavior of alleged victim
Mil. R. Evid. 412(a)
III-20
Ultimate issue included in
Mil. R. Evid. 704
III-43
Opportunity, evidence of other crimes, wrongs, or
acts as proof of
Mil. R. Evid. 404(b)
III-19
Order of interrogation and presentation
Mil. R. Evid. 611
III-41
Original
Defined
Mil. R. Evid. 1001(3)
?????
Requirement to use
Mil. R. Evid. 1002
III-50
When original not required._ See_ Contents of writings,
recordings, and photographs, this heading.
Other crimes, wrongs, or acts, evidence of
Mil. R. Evid. 404(b)
III-19
Ownership, proof by subsequent remedial measures
Mil. R. Evid. 407
III-20
Pardon, effect on impeachment by conviction
Mil. R. Evid. 609(c)
III-41
Past sexual behavior
Admissibility
Mil. R. Evid. 412(a); 412(b)
III-20; III-21
Defined
Mil. R. Evid. 412(d)
III-21
Degrading questions
Mil. R. Evid. 303
III-4
Evidence of similar sexual crimes
Mil. R. Evid 413; 414
III-21; III-22
Procedural requirements for admission
Mil. R. Evid. 412(c)
III-21
Payment of medical and similar expenses
Mil. R. Evid. 409
III-20
Personal knowledge, requirement for in order to testify
Mil. R. Evid. 602
III-39
Photographs, defined
Mil. R. Evid. 1001(2)
?????
Plain error
Mil. R. Evid. 103(d)
III-1
Plan or design of accused, evidence of other crimes,
wrongs, or acts as proof of
Mil. R. Evid. 404(b)
III-19
Pleas, plea discussions and related statements, admissibility
Mil. R. Evid. 410
III-20
Political vote, privilege concerning
Mil. R. Evid. 508
III-36
Prejudice, unfair
Mil. R. Evid. 403
III-19
Preliminary questions
Mil. R. Evid. 104
III-1
Preparation, evidence of other crimes, wrongs, or
acts as proof of
Mil. R. Evid. 404(b)
III-19
Presentation on merits
R.C.M. 913(c)
II-108
Present sense impression
Mil. R. Evid. 803(1)
III-44
Previous convictions
Impeachment by evidence of
Mil. R. Evid. 609
III-40
Judgment or evidence of
Mil. R. Evid. 803(22)
III-46
Priest, privileged communications to
Mil. R. Evid. 503
III-23
Prior statements of witnesses
Impeachment by evidence of
Mil. R. Evid. 613
III-42
Prior consistent statement as non-hearsay
Mil. R. Evid. 801(d)(1)
III-44
Prior inconsistent statement as non-hearsay
Mil. R. Evid. 801(d)(1)
III-44
Prior statement of identification as non-hearsay
Mil. R. Evid. 801(d)(1)
III-44
Privileges
Applicability of rules concerning
Mil. R. Evid. 1101(b)
III-51
Classified information
Mil. R. Evid. 505
III-25
Comments upon or inference from claim of, at trial
Limiting instruction
Mil. R. Evid. 512(c)
III-37
Prohibited
Mil. R. Evid. 512(a)
III-36
Communication of privileged information by electronic
means
Mil. R. Evid. 511(b)
III-36
Communication to clergy
Mil. R. Evid. 503
III-23
Compelled or unintentional disclosure of information
Mil. R. Evid. 511(a)
III-36
Deliberations of courts and juries
Mil. R. Evid. 509
III-36
Exceptions
Mil. R. Evid. 606
III-40
General rule
Mil. R. Evid. 501
III-22
Government information
Mil. R. Evid. 506
III-30
Husband-wife
Mil. R. Evid. 504
III-24
Identify of informant
Mil. R. Evid. 507
III-35
Lawyer-client
Mil. R. Evid. 502
III-22
Medical officer or civilian physician, no privilege
Mil. R. Evid. 501(d)
III-22
Mental examination of accused._ See_ **Self-incrimination.**
Political vote
Mil. R. Evid. 508
III-36
Preliminary determinations concerning
Mil. R. Evid. 104(a)
III-1
Psychotherapist-patient privilege
Mil. R. Evid. 513
III-37
Waiver by voluntary disclosure
Mil. R. Evid. 510
III-36
Probable cause._ See_ Search and seizure.
Production of
Motion for
R.C.M. 905(b)(4); 906(b)(7)
II-93; II-96
Procedure for
R.C.M. 703(f)(4)
II-67
Right to
R.C.M. 703(f)
II-67
Property
Records of documents affecting interest in
Mil. R. Evid. 803(14)
III-46
Statements in documents affecting interest in
Mil. R. Evid. 803(15)
III-46
Public records and reports
Mil. R. Evid. 803(8)
III-45
Qualifications to be a witness, determination by military
judge
Mil. R. Evid. 104(a)
III-1
Rabbi, privileged communications to
Mil. R. Evid. 503
III-23
Reasonable doubt
R.C.M. 918(c)
II-117
Rebuttal
R.C.M. 1001(d)
II-125
Recollection recorded
Mil. R. Evid. 803(5)
III-44
Recordings, defined
Mil. R. Evid. 1001(1)
?????
Refreshing memory, by use of writings
Mil. R. Evid. 612
III-42
Regularly conducted activity, records of
Mil. R. Evid. 803(6)
III-45
Relaxation of rules, in sentencing proceedings
Mil. R. Evid. 1101(c)
III-51
Relevancy
Defined
Mil. R. Evid. 401
III-18
Effect on admissibility
Mil. R. Evid. 402
III-18
Exclusion of relevant evidence
Mil. R. Evid. 403
III-19
When conditioned on fact
Mil. R. Evid. 104(b)
III-2
Religious beliefs or opinions
Mil. R. Evid. 610
III-41
Religious organizations, record of
Mil. R. Evid. 803(11)
III-45
Remainder of, or related, writings or recorded statements
Mil. R. Evid. 106
III-2
Reputation
Character
Mil. R. Evid. 803(21)
III-46
Community, defined
Mil. R. Evid. 405(d)
III-19
Concerning boundaries or general history
Mil. R. Evid. 803(20)
III-46
Concerning personal or family history
Mil. R. Evid. 803(19)
III-46
Defined
Mil. R. Evid. 405(d)
III-19
Routine practice
Mil. R. Evid. 406
III-19
Rule of completeness
Mil. R. Evid. 106
III-2
Rules of Evidence, Military
Amendments to
Mil. R. Evid. 1102
III-51
Analysis of
Appendix 22
A22-1
Applicability
Mil. R. Evid. 101(a); 1101(a)
III-1; III-51
Citation to
Mil. R. Evid. 1103
III-51
Inapplicability
Mil. R. Evid. 1101(d)
III-51
Purpose and construction
Mil. R. Evid. 102
III-1
Relaxation during sentencing proceedings
Mil. R. Evid. 1101(c)
III-51
Ruling admitting or excluding evidence
Effect of erroneous ruling
Mil. R. Evid. 103(a)
III-1
Plain error
Mil. R. Evid. 103(d)
III-1
Search._ See_ Search and seizure.
Self-authentication
Mil. R. Evid. 902
III-49
Self-incrimination._ See_ ** Self-incrimination.**
Sentencing proceedings
Generally
R.C.M. 1001
II-123
Relaxation of rules
Mil. R. Evid. 1101(c)
III-51
Sexual offenses
Nonconsensual
Mil. R. Evid. 412
III-20
Evidence of similar sexual crimes
Mil. R. Evid. 413; 414
III-21; III-22
Specific instances of conduct, to prove character
Mil. R. Evid. 405(b)
III-19
Spontaneous exclamations
Mil. R. Evid. 803(2)
III-44
Stipulations
Confessional
R.C.M. 705(b)(1)
II-69
Generally
R.C.M. 811
II-86
Striking testimony
After witness asserts self-incrimination privilege
Mil. R. Evid. 301(f)(2)
III-4
Writing to refresh memory, failure to produce
Mil. R. Evid. 612
III-42
Subscribing witness' testimony, unnecessary for
authentication
Mil. R. Evid. 903
III-50
Subsequent remedial measures
Mil. R. Evid. 407
III-20
Summary court-martial, applicability of rules
Mil. R. Evid. 101(a);
R.C.M. 1304(b)(2)(E)
III-1; ???
Telephonic transmissions of privileged information, effect of
Mil. R. Evid. 511(b)
III-36
Testimony
Failure to testify by accused, instruction concerning
Mil. R. Evid. 301(g)
?????
Preliminary matter, by accused
Mil. R. Evid. 104(d)
III-2
Trial counsel, duty to disclose
R.C.M. 701(a)
II-57
Unavailability of declarant, defined
Mil. R. Evid. 804(a)
III-47
Victim, character of
Mil. R. Evid. 404(a)(2)
III-19
Vital statistics, records of
Mil. R. Evid. 803(9)
III-45
Vote, political, privilege concerning
Mil. R. Evid. 508
III-36
Waiver
Failure to object
Mil. R. Evid. 103(a)(1)
III-1
Guilty plea
Mil. R. Evid. 304(d)(5); 311(i);
321(g); R.C.M. 910(j)
???;???;???;???
Privileges
Mil. R. Evid. 510
III-36
Waste of time, as grounds for exclusion of relevant evidence
Mil. R. Evid. 403
III-19
Witnesses
Advice concerning self-incrimination
Mil. R. Evid. 301(b)(2)
?????
Availability determination
Mil. R. Evid. 104(a)
III-1
Calling and interrogation by the court-martial
Mil. R. Evid. 614
III-42
Children
R.C.M. 804; R.C.M. 914A; Mil. R. Evid. 611(d)
II-80; ???; III-41
Competency, general rule
Mil. R. Evid. 601
III-39
Court members as witnesses
Mil. R. Evid. 606
III-40
Exclusion from courtroom
Mil. R. Evid. 615
III-43
Impeachment of._ See_ Impeachment, this heading.
Military judge as a witness
Mil. R. Evid. 605
III-39
Mode and order of interrogation and presentation
Mil. R. Evid. 611
III-41
Oath or affirmation
Mil. R. Evid. 603
III-39
Personal knowledge, requirement for
Mil. R. Evid. 602
III-39
Production of
Procedures for
R.C.M. 703(e)
II-64
Right to
R.C.M. 703(b)
II-63
Qualification as
Mil. R. Evid. 104(a)
III-1
Writings and recordings
Defined
Mil. R. Evid. 1001(1)
?????
Refresh memory, to
Mil. R. Evid. 612
III-42
Remainder of or related writings
Mil. R. Evid. 106
III-2
Requirement of original to prove
Mil. R. Evid. 1002
III-50
Examination
Members
Generally
R.C.M. 912(d)
II-105
Questionnaire, use of
R.C.M. 912(a)
II-104
Record of trial before authentication
R.C.M. 1103(i)
II-145
Polygraph
Mil. R. Evid. 707
III-43
Witnesses
Deposition
R.C.M. 702(g)(1)(B); 702(g)(2)(D)
II-62
Generally
Mil. R. Evid. 614
III-42
Pretrial investigation
R.C.M. 405(h)(1)
II-38
Remote live testimony of a child
R.C.M. 804; R.C.M. 914A;
Mil. R. Evid. 611(d)
II-81; ???; III-41
Exceptions and substitutions
Findings by
R.C.M. 918(a)
II-116
Lesser included offenses
IV-4
Plea, entry by
R.C.M. 910(a)
II-102
Execution of sentence
Action, statement as to
R.C.M. 1107(f)(4)(B)
II-159
Deferment, effect on
R.C.M. 1101(c)(6); 1101(c)(7)
II-140
Generally
R.C.M. 1113
II-167
Punishment which may be ordered executed in initial
action
R.C.M. 1113(b)
II-168
Punishment which may not be ordered executed in initial
action
R.C.M. 1113(c)
II-168
Suspension._ See_ Suspension of sentence.
Exhibits
Generally
R.C.M. 913(c)
II-108
Members, use during deliberations
R.C.M. 921(b)
II-119
Sealed
R.C.M. 1103A
II-146
Expert witnesses
_ See also_ Evidence, Experts.
Employment of
R.C.M. 703(d)
II-64
Opinion testimony by
Mil. R. Evid. 702; 703; 704; 705
III-43
Explosive, defined
R.C.M. 103(11)
II-1
Exporting controlled substances
IV-54
Exposure, indecent
IV-120
Extenuation, matters in
Investigation, pretrial
R.C.M. 405(f)(11); 405(h)(1)(C)
II-35; II-38
Presentencing procedure
R.C.M. 1001(c)(1)(A); 1001(c)(2)(A);
1001(c)(3)
II-125
Extortion
IV-87
Extra duty
V. Para. 5b(2)(A)(v); 5b(2)(B)(v);
V. Para. 5c(6); 6b(4)
V-5; V-6; V-8
Extraordinary relief, petition for
Appellate counsel
R.C.M. 1202(b)
II-173
Reviewed by
Court of Military Appeals
R.C.M. 1204(a)
II-176
Court of Military Review
R.C.M. 1203(b)
II-174
Speedy trial, effect on
R.C.M. 707(b)(3)(C)
II-73
Eyewitness identification
Mil. R. Evid. 321
III-16
Failure to
Afford all practical relief and assistance in combat
IV-33
Enforce or comply with code
IV-32
Engage or do utmost to encounter enemy
IV-33
Enter plea
R.C.M. 910(b)
II-102
Fulfill terms of pretrial agreement
R.C.M. 705(d)(4)
II-71
Maintain funds, dishonorable
IV-107
Obey orders or regulations
IV-23
Pay debts
IV-112
Repair
IV-13
Report, prevent, or suppress mutiny
IV-26
Secure or report captured or abandoned property
IV-39
False
Alarm, before enemy
IV-33
Claim
IV-96
Discharge certificate
IV-115
Identification card
IV-115
Official statement
IV-46
Pass
IV-115
Permit
IV-115
Pretenses
Larceny by
IV-74
Obtaining services under
IV-116
Receipt
IV-96
_ See also_ Fraud,against United States.
Statement, during guilty plea inquiry
R.C.M. 910(c)(5)
II-102
Statements in support of probable cause
Mil. R. Evid. 311(g)(2)
?????
Swearing
IV-116
Writing_ See_ **False official statement; Forgery;
Fraud** against United States.
Federal courts
Former trial in, effect of
Final determination
R.C.M. 905(g)
II-94
Former jeopardy
R.C.M. 907(b)(2)(C)
II-98
Jurisdiction
R.C.M. 201(d)
II-10
Members of bar, counsel in courts-martial
R.C.M. 502(d)(3)(A)
II-44
Rules of evidence in, application to courts-martial
Mil. R. Evid. 101(b)
III-1
Federal Rules of Evidence, amendments
Mil. R. Evid. 1102
III-51
Finality of courts-martial
R.C.M. 1209
II-179
Financial inability, as a defense
R.C.M. 916(i)
II-113
Findings
Action by members after reaching
R.C.M. 921(d)
II-120
Announcement of
Effect on reconsideration
R.C.M. 924(a)
II-121
Erroneous
R.C.M. 922(d)
II-121
Examination of worksheets by military judge, effect on
R.C.M. 921(d)
II-120
Forms of
Appendix 10
A10-1
Guilty plea, based on
R.C.M. 910(g)
II-103
Members
R.C.M. 922(b)
II-121
Military judge
R.C.M. 922(c)
II-121
Basis for
R.C.M. 918(c)
II-117
Charge, as to
R.C.M. 918(a)(2)
II-116
Contempt
R.C.M. 809(c)
II-84
Convening authority, action on
R.C.M. 1107(c); 1107(f)(3)
II-156; II-158
Deliberations and voting on
R.C.M. 921
II-119
Exceptions and substitutions
R.C.M. 918(a)(1)
II-116
General
R.C.M. 918(a)
II-116
Guilty
Convening authority, action on
R.C.M. 1107(c); 1107(f)(3)
II-156; II-158
Reconsideration
R.C.M. 924(a); 924(c)
II-121; II-122
Standard
R.C.M. 918(c)
II-117
Vote resulting in
R.C.M. 921(c)(2)
II-120
Guilty plea, based on
R.C.M. 910(g)
II-103
Impeachment of
R.C.M. 923
II-121
Instructions on
R.C.M. 920
II-118
Lesser included offense
R.C.M. 918(a)
II-116
Not guilty
Convening authority, action on
R.C.M. 1107(b)(4)
II-155
Motion for finding of
R.C.M. 917
II-115
Reconsideration of
R.C.M. 924(b)
II-121
Vote resulting in
R.C.M. 921(c)(3)
II-120
Not guilty, lack of mental responsibility
R.C.M. 921(c)(4)
II-120
Post-trial hearing
R.C.M. 1102A
II-142
Reasonable doubt standard
R.C.M. 918(c)
II-117
Reconsideration
R.C.M. 924
II-121
Special findings._ See_ Special findings.
Specifications
R.C.M. 918(a)(1)
II-116
Voting on
R.C.M. 921(c)
II-120
Fine
Contempt, punishment for
R.C.M. 809(a); 809(e)
II-84; II-85
Courts-martial, punishment in
R.C.M. 1003(b)(3)
II-127
Fingerprints
Authentication by comparison
Mil. R. Evid. 901(b)(3)
III-48
Fingerprint cards admissible as hearsay exception
Mil. R. Evid. 803(6); 803(8)
III-45
Firearm
Defined
R.C.M. 103(12)
II-1
Discharge
Negligent
IV-117
Willful
IV-117
Maximum punishment, affecting
Aggravated assault
IV-92
Larceny, wrongful appropriation
46e(2)(c)
IV-78
Military property
IV-48; IV-49
Robbery
IV-79
Fitness reports, members, military judge, counsel
R.C.M. 104(b)
II-5
Flag, striking the
IV-36
Fleeing scene of accident
IV-118
Forcing a safeguard
IV-38
Foreign law
Judicial notice of
Mil. R. Evid. 201A(b)
?????
Occupied territory
R.C.M. 201(f)(1)(B)(i)(b)
?????
Foreign nation
Interrogation by officials of
Mil. R. Evid. 305(h)(2)
?????
Military jurisdiction, in friendly
R.C.M. 201(d)
II-10
Military jurisdiction, in belligerent
I. Para. 2(a)(3); R.C.M. 201(f)(1)(B)
???;???
Search by officials of
Mil. R. Evid. 311(c)(3)
III-9
Foreign records, authentication of
Mil. R. Evid. 902(3)
III-49
Forfeiture of pay and allowances
General courts-martial, power to adjudge
R.C.M. 201(f)(1)(A)(ii)
II-11
Nonjudicial punishment
Reserve Component Personnel
V. Para. 5e
V-6
Enlisted member, imposed upon
V. Para. 5b(2)(A)(iii); 5b(2)(B)(iii)
V-5
Generally
V. Para. 5c(8)
V-6
Officer, imposed upon
V. Para. 5b(1)(B)(ii)
V-4
Sentence to
Execution of
R.C.M. 1113(b)
II-168
Generally
R.C.M. 1003(b)(2)
II-127
Forgery
Fraud against United States, in connection with
IV-96
Generally
IV-79
Former jeopardy
Mistrial, effect of
R.C.M. 915(c)
II-111
Motion to dismiss for
R.C.M. 907(b)(2)(C)
II-98
Nonjudicial punishment as
V. Para. 1f(1); 1f(5)
V-1; V-2
Withdrawal of charges, effect of
R.C.M. 604(b)
II-56
Former punishment
Bar to trial
R.C.M. 907(b)(2)(D)(iv)
II-99
Effect of nonjudicial punishment
V. Para. 1f(1); 1f(5)
V-1; V-2
Former testimony, admissibility of
Mil. R. Evid. 804(b)(1)
III-47
Forwarding charges, generally
R.C.M. 401(a)
II-31
_ See also_ Charges and specifications.
Fraternization, as offense
IV-118
Fraud
_ See also_ Check; Forgery; Larceny.
Against United States
IV-96
Fraudulent enlistment, appointment, or separation
IV-8
Frisk
Mil. R. Evid. 314(f)(2)
III-13
Gambling with subordinate
IV-119
General article (Art. 134, UCMJ)
IV-100
General court-martial
_ See also_ specific topics.
Composition
R.C.M. 501(a)(1)
II-43
Convening authority
R.C.M. 407; 504(b)(1)
II-41; II-49
_ See also_ **Convening authority.**
Counsel
R.C.M. 502(d)
II-44
Jurisdiction of
R.C.M. 201(f)(1)
II-11
Prerequisites
Pretrial investigation
R.C.M. 405(a)
II-34
Staff judge advocate advice
R.C.M. 406(a)
II-40
Procedural guide
Appendix 8
A8-1
Record of trial
R.C.M. 1103(b)
II-142
Referral of charges to
R.C.M. 601(e)
II-53
General order, failure to obey
IV-23
Government
Appeal by
R.C.M. 908
II-99
Fraud against
IV-96
Government information privilege
Mil. R. Evid. 506
III-30
Government officials, contempt toward
IV-17
Graft
IV-106
Grievous bodily harm, defined
IV-90
Guard
_ See also_ Sentinel or lookout.
Abandoning
IV-13
Leaving place of duty
IV-57
Report, as hearsay exception
Mil. R. Evid. 803(8)
III-45
Guide for general and special courts-martial
Appendix 8
A8-1
Guilty
Findings._ See_ Findings.
Pleas._ See_ Pleas.
Habit, evidence of
Mil. R. Evid. 406
III-19
Handwriting, authentication of
Mil. R. Evid. 901(b)(2); 901(b)(3)
III-48
Hard labor without confinement
Execution of
R.C.M. 1113(b)
II-168
General court-martial, power to adjudge
R.C.M. 201(f)(1)(A)(ii)
II-11
Sentence of court-martial
R.C.M. 1003(b)(7)
II-128
Special court-martial, power to adjudge
R.C.M. 201(f)(2)(B)(i)
II-12
Summary court-martial, power to adjudge
R.C.M. 1301(d)(1)
II-182
Hazarding a vessel
IV-50
Hazardous duty, absence with intent to avoid
IV-10
Hearsay. _ See_ Evidence, Hearsay.
Heroin, offenses involving
IV-54
Homicide
Defense of another
R.C.M. 916(e)(5)
II-113
Dying declarations
Mil. R. Evid. 804(b)(2)
III-47
Manslaughter
IV-64
Murder
IV-62
Negligent homicide
IV-119
Self-defense
R.C.M. 916(e)
II-112
Unborn child, death of injury of
IV-64
Housebreaking
Assault with intent to commit
IV-104
Generally
IV-94
Husband-wife privilege
Mil. R. Evid. 504
III-24
Identification card, false
IV-115
Identification of accused
Acts preceding or following offense
Mil. R. Evid. 404(b)
III-19
By witness
Mil. R. Evid. 321
III-16
Ignorance of fact, as defense
R.C.M. 916(j)
II-113
Ignorance of law, as defense
R.C.M. 916(l)(1)
II-115
Illness
Feigning
IV-60
Good cause for excusal
R.C.M. 505(f)
II-51
Immunity
Attorney General of United States, authorized by
R.C.M. 704(c)(1)
II-68
Authority to grant
R.C.M. 704(c)
II-68
Contents of grant
R.C.M. 704(d)
II-69
Defense witness, request for
R.C.M. 704(e)
II-69
Effect
Mil. R. Evid. 301(c)(1);
R.C.M. 704(a); 704(b)
???;???; II-68
General court-martial convening authority
R.C.M. 704(c)
II-68
Generally
R.C.M. 704
II-68
Military judge review of decision whether to grant
R.C.M. 704(e)
II-69
Motion to dismiss based on grant of, to accused
R.C.M. 907(b)(2)(D)(ii)
II-98
Notification to accused of
Mil. R. Evid. 301(c)(2)
?????
Procedure
R.C.M. 704(d)
II-69
Self-incrimination, effect on
Mil. R. Evid. 301(c)
III-3
Types of
R.C.M. 704(a)
II-68
Impeachment
_ See also_ Evidence, Impeachment.
Findings
R.C.M. 923
II-121
Sentence
R.C.M. 1008
II-137
Impersonating a commissioned officer, warrant officer,
** noncommissioned officer, government agent or official**
IV-120
Importing controlled substances
IV-54
Inability, as defense
Generally
R.C.M. 916(i)
II-113
To authorized absence
IV-14
Incapacitation for duty through drunkenness
IV-114
Included offenses. _ See_ ** Lesser included offenses.**
Incrimination. _ See_ Self-incrimination.
Indecent
Acts
With a child
IV-120
With another
IV-68
Assault
IV-104
Exposure
IV-68
Language
IV-121
Liberties with a child
IV-68
Individual counsel, generally
R.C.M. 506(b)
II-51
_ See also_ Counsel; Defense counsel.
Influence
Command, unlawful
As offense
IV-32
Generally
R.C.M. 104
II-5
Impeachment of sentence
R.C.M. 1008
II-137
Inquiry of members as to
Mil. R. Evid. 606(b)
III-40
Outside, on members
R.C.M. 923; 1008;
Mil. R. Evid. 606(b)
II-121; III-51; III-40
Informant, identify of, privilege concerning
Mil. R. Evid. 507
II-1
Injury
Grievous bodily harm
IV-90
Maiming
IV-84
Self-inflicted
IV-60
Unborn child, death of injury of
IV Para. 44a
IV-64
Innocence, presumption of
R.C.M. 920(e)(5)(A)
II-119
Inquiry, court of. _ See_ ** Court of inquiry.**
Inquiry, preliminary
R.C.M. 303
II-19
Insanity. _ See_ Mental capacity; Mental responsibility.
Inspect, defined for discovery purposes
R.C.M. 701(h)
II-60
Inspections
_ See also_ Search and seizure.
By court-martial
R.C.M. 913(c)(3)
II-108
Health and welfare, evidence discovered in
Mil. R. Evid. 313(b)
III-11
Inspector general, privileged communications
Mil. R. Evid. 506(c)
III-30
Instruction, extra military
V. Para. 1g
V-2
Instruction on military justice
Art. 137, UCMJ;
R.C.M. 104(a)(3)(A)
A2-35; ???
Instructions
Deposition, authority who gives
R.C.M. 702(d)(3)
II-61
In courts-martial, by military judge
Accomplice testimony, joint or common trial
Mil. R. Evid. 306
III-8
Contempt
R.C.M. 809(c)
II-84
Evidence, limited purpose
Mil. R. Evid. 105
III-2
Expert testimony
Mil. R. Evid. 702
III-43
Findings
R.C.M. 920
II-118
Generally
R.C.M. 801(a)(5)
II-75
Preliminary
R.C.M. 913(a)
II-107
Sentencing
R.C.M. 1005
II-134
Pretrial investigation, procedural instruction
R.C.M. 405(c)
II-34
Referral, convening authority
R.C.M. 601(e)(1)
II-53
Insubordination. _ See_ ** Contempt; Disobedience of orders;
Disrespect.**
Intelligence, giving to the enemy
IV-41
Intent
_ See also_ specific offenses.
Evidence of
Acts preceding or following offense
Mil. R. Evid. 404(b)
III-19
Statements of
Mil. R. Evid. 803(3)
III-44
To distribute controlled substances
IV-56
Interlocutory questions
Appeal of
R.C.M. 908
II-99
Evidence, right to production of
R.C.M. 703(f)
II-67
Generally
R.C.M. 801(e)
II-76
Rulings on
By military judge
R.C.M. 801(e)(1)
II-76
By president of special court-martial without military
judge
R.C.M. 801(e)(2); 801(e)(3)
II-76
Confessions and admissions
Mil. R. Evid. 304(d)(4)
?????
Evidence of pretrial identification of accused
Mil. R. Evid. 321(f)
?????
Evidence seized from accused
Mil. R. Evid. 311(d)(4)
III-9
Generally
R.C.M. 801(a)(4); 801(e)(1)
II-75; II-76
Standard of proof
R.C.M. 801(e)(4)
II-76
Witnesses, right to, for determining
R.C.M. 703(b)(1)
II-63
International law, judicial notice of
Mil. R. Evid. 201A(b)
?????
Interpreter
At investigation, pretrial
R.C.M. 405(d)(3)(C)
II-35
Detailing
R.C.M. 501(c)
II-43
Disqualification
R.C.M. 502(e)(2)
II-47
Duties
R.C.M. 502(e)(3)
II-47
Oath
R.C.M. 807(b); 901(c)
II-83; II-89
Payment of
R.C.M. 502(e)(4)
II-47
Qualifications
R.C.M. 502(e)(1)
II-47
Testimony given through
Mil. R. Evid. 604
III-39
Interrogation. _ See_ Self-incrimination.
Interrogatories. _ See_ ** Deposition.**
Intoxication
_ See also_ Drunkenness.
Intent, effect on
R.C.M. 916(l)(2)
II-115
Murder, effect on intent in
IV-63
Not defense, generally
R.C.M. 916(l)(2)
II-115
Introduction of controlled substance
IV-54
Inventory
Mil. R. Evid. 313(c)
III-12
Investigation, pretrial (Art. 32, UCMJ)
Accused, rights at
R.C.M. 405(f)
II-35
Authority to direct
R.C.M. 403(b)(5); 404(e); 405(c);
407(a)(5)
II-33; II-35; II-34; II-41
Court of inquiry, as substitute for
R.C.M. 405(b)
II-1
Defense counsel
R.C.M. 405(d)(2)
II-34
Deposition, use at
R.C.M. 405(g)(4)(A)(iv);
R.C.M. 405(g)(4)(B)(iv);
R.C.M. 405(g)(5)(A)(iii);
R.C.M. 405(g)(5)(B)(iii); 702(a)
II-37; ???;???
Earlier investigation, as substitute for
R.C.M. 405(b)
II-34,??
Evidence, production of
R.C.M. 405(g)
II-35
General court-martial, requirement for
R.C.M. 407(a)(6); 601(d)(2)
II-41; II-53
Instructions, by commander who directs
R.C.M. 405(c)
II-34
Investigating officer
Charges and specifications, no authority to change
R.C.M. 603(b)
II-55
Detailing
R.C.M. 405(d)(1)
II-34
Disqualification, to act in any capacity in same trial
R.C.M. 405(d)(1); 502(d)(4)(B)
II-34; II-45
502(e)(2)(C); 902(b)(2); 912(a)(1)(K)
???; II-90; II-105
Recommendation
R.C.M. 405(j)
II-39
Mental examination of the accused
R.C.M. 706(a); 706(c)(3)(A)
II-71; II-72
Military Rules of Evidence, not applicable
R.C.M. 405(i)
II-39
Motions relating to
R.C.M. 905(b)(1); 906(b)(3)
II-93; II-96
Objections
R.C.M. 405(h)(2); 405(j)(4)
II-38; II-40
Personnel
R.C.M. 405(d)
II-34
Procedure
R.C.M. 405(h)
II-38
Report of
R.C.M. 405(j); Appendix 5
II-39; A5-1
Scope
R.C.M. 405(e)
II-35
Spectator, access to
R.C.M. 405(h)(3)
II-39
Waiver
R.C.M. 405(k); 705(c)(2)(E); 905(e)
II-40; II-70; II-94
Failure to object to defects
R.C.M. 905(e)
II-94
Generally
R.C.M. 405(k)
II-40
Pretrial agreement provision
R.C.M. 705(c)(2)(E)
II-70
Witness, production of
R.C.M. 405(g)
II-35
Investigator. _ See_ Law enforcement official.
Involuntary manslaughter
IV-64
Jeopardy. _ See_ Former jeopardy.
Jet. _ See_ Plane.
Joint, defined
R.C.M. 103(13)
II-2
Joint command or task force, jurisdiction
R.C.M. 201(e)(2)
II-10
Joint offenses. _ See_ ** Accomplices; Conspiracy; Principals.**
Joint Service Committee on Military Justice
Appendix 26
A26-1
Joint trial
Counsel representing more than one accused, inquiry
required
R.C.M. 901(d)(4)(D)
II-90
Evidence of statement of accused
Mil. R. Evid. 105; 306
III-2; III-8
Procedure
R.C.M. 812
II-87
Referrals to
R.C.M. 601(e)(3)
II-54
Rights of accused
R.C.M. 812
II-87
Sever, motion to
R.C.M. 906(b)(9)
II-96
Joy riding
IV-74
Judge. _ See_ Military judge.
Judge advocate
Defined
Art. 1(13), UCMJ; R.C.M. 103
A2-1; ???
Oaths, authority to administer
Art. 136(a)(1), UCMJ
A2-35
Review of record of trial by
R.C.M. 1112
II-166
Judge Advocate General, The
Cases examined by
R.C.M. 1201(b)(1)
II-172
Cases forwarded to Court of Criminal Appeals
R.C.M. 1201(a)
II-172
Cases reviewed by
R.C.M. 1201(b)(2); 1201(b)(3)
II-172
Certification of military judge
R.C.M. 502(c)
II-44
Detailing military judge
R.C.M. 503(b)(1)
II-48
Professional supervisor of military judge, counsel
R.C.M. 104(a)(3)(C); 109
II-5; II-6
Remission and suspension of sentence
R.C.M. 1201(c)
II-173
Review of summary courts-martial
R.C.M. 1306(d)
II-187
Rules of court, authority to make
R.C.M. 108
II-6
Waiver of review, by accused
R.C.M. 1110
II-164
Judgments of courts-martial, finality of
R.C.M. 1209
II-179
_ See also_ Findings; Sentence.
Judicial notice
Adjudicative facts
Mil. R. Evid. 201
III-2
Of law, foreign and domestic
Mil. R. Evid. 201A
?????
Jumping from vessel into water
IV-121
Jurisdiction
Commander's
I. Para. 2(b)(4); V. Para. 2a
???; V-2
Courts-martial
Accused from armed force different from convening
authority
R.C.M. 201(e)
II-10
Attachment of
R.C.M. 202(c)
II-15
Civilians
R.C.M. 202(a)
II-13
Composition, affecting
R.C.M. 201(b)(2)
II-9
Constructive enlistment
Art. 2(c), UCMJ; R.C.M. 202(a)
A2-2; ???
Contempt power
R.C.M. 201(c)
II-9
Convening, as affecting
R.C.M. 201(b)(1)
II-9
Discharge, effect on
R.C.M. 202(a); 202(c)
II-13; II-15
Dismissal of charges for lack of
R.C.M. 907(b)(1)(A)
II-97
Generally
I. Para. 2(b)(1)
I-1
Joint command
R.C.M. 201(e)(2)
II-10
Law of war, offense under
R.C.M. 201(a)(3); 201(f)(1)(B)
II-9; II-11
Military offense, exclusive jurisdiction
R.C.M. 201(d)(1)
II-10
Motion to dismiss for lack of
Burden of proof
R.C.M. 905(c)(2)(B)
II-93
Generally
R.C.M. 907(b)(1)(A)
II-97
Not waived
R.C.M. 905(b); 905(e); 907(b)(1)(A)
II-93; II-94; II-98
Nature of
R.C.M. 201(a)
II-9
Offenses subject to
Civilian tribunals, trial in
R.C.M. 201(d)
II-10
Generally
R.C.M. 203
II-15
Service connection of
R.C.M. 203
II-15
Persons subject to
Generally
R.C.M. 202(a)
II-13
Law of war, under
R.C.M. 202(b)
II-14
Reservists
R.C.M. 204
II-15
Place of offense, effect on
R.C.M. 201(a)(2)
II-9
Place of trial, effect on
R.C.M. 201(a)(3)
II-9
Reciprocal, between service
R.C.M. 201(e)
II-10
Referral, as affecting
R.C.M. 201(b)(3)
II-9
Requisites of
R.C.M. 201(b)
II-9
Review of, accused in different armed force
R.C.M. 201(e)(5)
II-11
Subject matter
R.C.M. 203
II-15
Courts of inquiry
R.C.M. 201(g); I. Para. 2(b)(3)
II-12; ???
Exercise of military
I. Para. 2
I-1
Foreign nation over visiting force
R.C.M. 201(d)
II-10
General courts-martial
R.C.M. 201(f)(1)
II-11
Kinds of military
I. Para. 2(a)
I-1
Memorandum of understanding concerning
Appendix 3
A3-1
Military commission
I. Para. 2(b)(2)
I-1
Not waivable by
Failure to raise at trial
R.C.M. 905(e)
II-94
Pretrial agreement
R.C.M. 705(c)(1)(B)
II-70
Provost courts
I. Para. 2(b)(2)
I-1
Sources
I. Para. 1
I-1
Special court-martial
R.C.M. 201(f)(2)
II-12
Summary courts-martial
R.C.M. 1301(c)
II-182
Jury. _ See_ Members of a court-martial.
Justification, as a defense
R.C.M. 916(c)
II-111
Juvenile courts, conviction by, admissibility
Mil. R. Evid. 609(d)
III-41
Kidnapping
IV-121
Killing. _ See_ Homicide; Manslaughter; Murder.
Laboratory reports, admissibility
Mil. R. Evid. 803(6); 803(8)
III-45
Language, Indecent
IV-121
Larceny
Generally
IV-74
Of mail
IV-122
Law, judicial notice of
Mil. R. Evid. 201A
?????
Law enforcement official
Assault on
IV-87
Civilian, authority to apprehend persons subject to code
R.C.M. 302(a)(2); 302(b)(3)
II-17; II-18
Interrogations by
Mil. R. Evid. 305
III-6
Military, authority to apprehend
R.C.M. 302(b)(1)
II-17
Searches by
Mil. R. Evid. 311(c)
III-8
Law of war
Courts-martial, cases under
R.C.M. 201(a)(3); 201(f)(1)(B)
II-9; II-11
Exercise of jurisdiction under
I. Para. 2(a)(4); R.C.M. 202(b); 203
???;???; II-15
Lawyer. _ See_ Counsel; Defense counsel; Trial counsel.
Lawyer-client privilege.
Mil. R. Evid. 502
III-22
Leading questions
Mil. R. Evid. 611(c)
III-41
Legal officer
_ See also_ Staff judge advocate.
Defined
Art. 1(12), UCMJ; R.C.M. 103
A2-1; ???
Disqualified
As member
R.C.M. 912(f)(1)(G)
II-106
As military judge
R.C.M. 902(b)(2)
II-90
Post-trial recommendation
R.C.M. 1106
II-152
Lesser included offense
Findings as to
Convening authority action approving
R.C.M. 1107(c)(1)
II-156
Exceptions and substitutions, by
R.C.M. 918(a)(1)
II-116
Guilty plea, on
R.C.M. 910(g)(2)
II-103
Generally
IV-3
Instructions
R.C.M. 920(e)(2)
II-119
Motions for finding of not guilty, on
R.C.M. 917(e)
II-116
Plea of guilty
R.C.M. 910(a)
II-102
Specific offenses, of
Part IV
?????
Voting on, by members
R.C.M. 921(c)(5)
II-120
Letter of reprimand. _ See_ ** Reprimand.**
Letters, authentication, of
Mil. R. Evid. 901; 902
III-48; III-49
Liberties, indecent, with child
IV-120
Liberties, conditions on
R.C.M. 304(a)(1)
II-19
_ See also_ Restraint, pretrial.
Lineup, identification at
Mil. R. Evid. 321
III-16
Liquor. _ See_ Drunk.
Logs, as records, admissibility
Mil. R. Evid. 803(6); 803(8)
III-45
Loitering on post by sentinel or lookout
IV-130
Lookout
Assault on
IV-87
Misbehavior as
IV-57
Offenses by or against
IV-130
Looting and pillaging
IV-39
Losing military property
IV-47
Loss
Notes of recordings of proceedings, of
R.C.M. 1103(f)
II-144
Records of trial, of
R.C.M. 1104(c)
II-149
Lost property, subject to larceny
IV-77
Magistrate, power to authorize search
Mil. R. Evid. 315(d)(2)
III-15
Obscene matters, depositing in
IV-123
Taking, opening, secreting, destroying, or stealing
IV-122
Maiming
IV-84
Unborn child, death of injury of
IV-64
Making false claim
IV-96
Malingering
IV-60
Maltreatment of person subject to orders
IV-25
Manslaughter
_ See also_ Homicide; Murder.
Assault with intent to commit voluntary
IV-104
Generally
IV-64
Unborn child, death of injury of
IV-64
Manual for Courts-Martial
Structure and application
I. Para. 4
I-1
Use of, by court members
R.C.M. 502(a)(2)
II-43
Manufacturing controlled substances
IV-54
Marijuana, offenses involving
IV-54
Martial law
I. Para. 2(a)(2)
I-1
Mast. _ See_ Nonjudicial punishment.
Members of a court-martial
Absence
Announcement concerning
R.C.M. 813(a)(5)
II-88
Generally
R.C.M. 805(b); 901(e)
II-80; II-90
Active duty
R.C.M. 502(a)
II-43
Announcement of
R.C.M. 813(a)(4)
II-88
Armed force or command different from convening authority
R.C.M. 503(a)(3)
II-48
Challenges
R.C.M. 912
II-104
Change of
R.C.M. 505(c)
II-50
Contempt, action on
R.C.M. 809(c)
II-84
Counsel, disqualified to act as
R.C.M. 502(d)(4)(D)
II-45
Defined
R.C.M. 103(14)
II-2
Detailing
R.C.M. 503(a)
II-47
Disqualification
R.C.M. 912(f)
II-106
Duties
R.C.M. 502(a)(2)
II-43
Enlisted
Absence of
R.C.M. 805(b)
II-80
Detailing
R.C.M. 503(a)(2)
II-47
Request for
R.C.M. 903
II-91
Evaluation of, limitations
R.C.M. 104(b)(1)
II-5
Evidence, request for
R.C.M. 913(c)(1)(F)
II-108
Examination of
R.C.M. 912(d)
II-105
Excusal
R.C.M. 505(c); 912(f)(3); 912(g)(1)
II-50; II-106; II-107
General court-martial, number required
R.C.M. 501(a)(1)
II-1
Influence, unlawful
R.C.M. 104
II-5
Manual for Courts-Martial, use of
R.C.M. 502(a)(2)
II-43
New members, procedure
R.C.M. 805(d)(1)
II-81
New trial
R.C.M. 810(b)(1)
II-85
Notes of
R.C.M. 921(b)
II-119
Oath
R.C.M. 807(b)(1)
II-83
Objections to rulings by president
R.C.M. 801(e)(3)
II-76
Other trial
R.C.M. 810(b)(1)
II-85
Presence at court-martial
R.C.M. 805(b); 901(e); 921(a);
II-80; II-90; II-119
1006(a)
II-1
President
R.C.M. 502(b)
II-44
_ See also_ **President of court-martial.**
Pretrial agreement, not informed of
R.C.M. 705(e)
II-71
Qualifications
R.C.M. 502(a)(1)
II-43
Rehearings
R.C.M. 810(b)(1)
II-85
Selection, challenge of
R.C.M. 912(b)
II-105
Sessions without
R.C.M. 803
II-78
Special court-martial, number required
R.C.M. 501(a)(2); 805(b)
II-43; II-80
Waiver of, by accused
Generally
R.C.M. 903
II-91
Pretrial agreement, in
R.C.M. 705(c)(2)(E)
II-70
Witness, incompetent as
Mil. R. Evid. 606
III-40
Mental capacity
Generally
R.C.M. 909
II-100
Inquiry into
R.C.M. 706
II-71
Lack of, effect on
Action of convening authority
R.C.M. 1107(b)(5)
II-155
Appellate review
R.C.M. 1203(c)
II-174
Death sentence
R.C.M. 1113(e)(1)(B)
II-168
Speedy trial
R.C.M. 707(c)
II-73
Motions relating to
R.C.M. 906(b)(14)
II-97
Post-trial hearing
R.C.M. 1102A
II-142
Presumption of
R.C.M. 909(b)
II-101
Standard
R.C.M. 909(c)
II-101
Mental disease or defect. _ See_ ** Mental responsibility.**
Mental examination
Discovery of
By defense
R.C.M. 701(a)(2)(B);
Mil. R. Evid. 513
II-57; III-37
By prosecution
R.C.M. 701(a)(2)(B);
Mil. R. Evid. 513
II-57; III-37
Of accused
R.C.M. 706
II-71
Speedy trial, effect on
R.C.M. 707(c)
II-73
Mental responsibility
Discovery of defense of
R.C.M. 701(b)(2)
II-58
Disease or defect, defined
R.C.M. 916(k)(1)
II-114
Failure to disclose intent to raise
R.C.M. 701(g)(3)
II-59
Generally
Art. 50a, UCMJ; R.C.M. 916(k)
A2-15; ???
Inquiry into
R.C.M. 706
II-71
Motions relating to
R.C.M. 906(b)(14)
II-97
Notice of defense involving
R.C.M. 701(b)(2)
II-58
Partial
R.C.M. 916(k)(2)
II-114
Post-trial hearing
R.C.M. 1102A
II-142
Presumption of
R.C.M. 916(k)(3)(A)
II-115
Withdrawn, effect of
R.C.M. 701(b)(5)
II-59
Midshipman
Conduct unbecoming and officer and gentleman
IV-100
Jurisdiction of courts-martial, subject to
Art. 2(a)(2), UCMJ; R.C.M. 202(a)
A2-1; ???
Summary courts-martial, not subject to trial by
R.C.M. 1301(c)
II-182
Military commission
Aiding the enemy, trial by
IV-41
Concurrent jurisdiction, other military tribunals
R.C.M. 201(g)
II-12
Contempt
Art. 48, UCMJ
A2-14
Exercise of jurisdiction
I. Para. 2(b)(2)
I-1
Procedure
I. Para. 2(b)(2)
I-1
Spying, trial by
IV-43
Military government
I. Para. 2(a)(3)
I-1
Military judge
Absence of, effect
R.C.M. 805(a)
II-80
Accused, advice to concerning
Appellate rights
R.C.M. 1010
II-138
Counsel rights
R.C.M. 901(d)(4)
II-89
Alone, trial by
Capital case, prohibited
R.C.M. 201(f)(1)(C); 903(a)(2)
II-12; II-91
Request for
R.C.M. 903
II-91
Waiver of right to
Generally
R.C.M. 903(e)
II-92
Pretrial agreement, in
R.C.M. 705(c)(2)(E)
II-70
Announcement of
R.C.M. 813(a)(3); 901(b)
II-88; II-89
Armed force different from accused or convening authority
R.C.M. 201(e)(4)
II-10
Assembly, announcement of
R.C.M. 911
II-104
Authentication of record of trial
R.C.M. 1104(a)(2)
II-147
Challenge of
R.C.M. 902
II-90
Change of
R.C.M. 505(e)
II-51
Conferences, with parties
R.C.M. 802
II-77
Confinement, pretrial
Authority to order release from
R.C.M. 305(g)
II-22
Review of
R.C.M. 305(j)
II-24
Contempt, authority to exercise
R.C.M. 801(b)(2); 809(c)
II-75; II-84
Control of proceedings
R.C.M. 801(a)(3); 804(b)
II-75; II-79
Counsel
Disqualification of
R.C.M. 901(d)(3)
II-89
Disqualified to act as
R.C.M. 502(d)(4)(C)
II-45
Oath, administering
R.C.M. 901(d)(5)
II-90
Defense counsel, permission to withdraw
R.C.M. 506(c)
II-52
Defined
R.C.M. 103(15)
II-2
Deposition
Authority to order
R.C.M. 702(b)
II-60
Authority to prohibit
R.C.M. 702(i)
II-63
Detail
Failure to in special court-martial
R.C.M. 201(f)(2)(B)(ii)(b)
?????
Generally
R.C.M. 503(b)
II-48
Discovery, authority to regulate
R.C.M. 701(g)
II-59
Disqualification
R.C.M. 902
II-90
Docketing
R.C.M. 801(a)(1)
II-75
Duties generally
R.C.M. 801
II-75
Evaluation of
R.C.M. 104(b)(2)
II-5
Guilty plea inquiry
R.C.M. 910(c)
II-102
Instruction._ See_ Instructions.
Interlocutory questions, rulings on
R.C.M. 801(a)(4)
II-75
Investigation, pretrial, review of evidence and witness
production by
R.C.M. 405(g)(2)
II-36
Mistrial
R.C.M. 915
II-110
Motions._ See_ Motions.
New trial
R.C.M. 810(b)(2)
II-86
Oath
R.C.M. 807(b)(1)
II-83
Other trial
R.C.M. 810(b)(2)
II-86
Power to authorize search
Mil. R. Evid. 315(d)(2)
III-15
Presence of, required
R.C.M. 805(a)
II-80
Pretrial agreement inquiry
R.C.M. 910(f)
II-103
Questions of law, ruling on
R.C.M. 801(a)(4)
II-75
Rehearings
R.C.M. 810(b)(2)
II-86
Reopening case
R.C.M. 913(c)(5)
II-109
Restraint of accused at trial
R.C.M. 804(d)(3)
II-80
Review of pretrial confinements
R.C.M. 305(j)
II-24
Rules of court
R.C.M. 108
II-6
Rulings by
R.C.M. 801(e)(1)
II-76
Session, call to order
R.C.M. 901(a)
II-89
Special court-martial without
R.C.M. 201(f)(2)(B)(ii)
II-12
Stipulation
R.C.M. 811
II-86
Supervision of
R.C.M. 109
II-6
Unavailability, effect on speedy trial
R.C.M. 707(c)
II-73
Views or inspections
R.C.M. 913(c)(3)
II-108
Witness
Disqualified from acting as
R.C.M. 902(b)(3)
II-90
Incompetent
Mil. R. Evid. 605
III-39
Military law
Generally
I. Para. 2(a)(1)
I-1
Nature and purpose
I. Para. 3
I-1
Military police. _ See_ ** Law enforcement official.**
Military property, sale, loss, damage, destruction, or wrongful
** disposition of**
IV-47
Military records, authentication of
Mil. R. Evid. 901; 902
III-48; III-49
Military Rules of Evidence
Part III.
?????
_ See also_ Evidence.
Military tribunals
Concurrent jurisdiction
R.C.M. 201(g)
II-12
Kinds of
I. Para. 2(b)
I-1
Minor offenses
Generally
V. Para. 1e
V-1
Prior punishment for, barring trial
R.C.M. 907(b)(2)(D)(iv)
II-99
Minors, competence as witnesses
Mil. R. Evid. 601
III-39
Misbehavior before the enemy
IV-33
Misbehavior of sentinel or lookout
IV-57
Misconduct
Prisoner of war
IV-42
Uncharged
Action by court-martial on
R.C.M. 801(d)
II-75
Admissibility of
Mil. R. Evid. 404(b)
III-19
Instruction
Mil. R. Evid. 105
III-2
Misprision of serious offense
IV-123
Missing movement
IV-16
Mistake of fact
Checks, insufficient funds
IV-83
Generally
R.C.M. 916(j)
II-113
Mistake of law
R.C.M. 916(l)(1)
II-115
Mistrial
Effect
R.C.M. 915(c)
II-111
Grounds for
R.C.M. 915(a)
II-110
Partial
R.C.M. 915(a)
II-110
Procedure
R.C.M. 915(b)
II-110
Remedy for failure to produce statement
R.C.M. 914(e)
II-109
Mitigation
Evidence in sentencing
R.C.M. 1001(c)(1)(B)
II-125
Modification of initial action
R.C.M. 1107(f)(2)
II-158
Motions
Appropriate relief
Bill of particulars
R.C.M. 906(b)(6)
II-96
Charges and specifications
R.C.M. 905(b)(1); 906(b)(4)
II-93; II-96
Continuance
R.C.M. 906(b)(1)
II-95
Counsel
R.C.M. 905(b)(6); 906(b)(2)
II-93; II-95
Defined
R.C.M. 906(a)
II-95
Discovery
R.C.M. 905(b)(4); 906(b)(7); 914
II-93; II-96; II-109
Evidence, admissibility of
R.C.M. 906(b)(13)
II-1
Generally
R.C.M. 906
II-95
Investigation, pretrial
R.C.M. 905(b)(1); 906(b)(3)
II-93; II-96
Mental capacity
R.C.M. 906(b)(14)
II-97
Mental responsibility
R.C.M. 906(b)(14)
II-97
Multiplicity
R.C.M. 906(b)(12)
II-97
Place of trial, change of
R.C.M. 906(b)(11)
II-97
Pretrial advice
R.C.M. 905(b)(1); 906(b)(3)
II-93; II-96
Severance of
Accused
R.C.M. 905(b)(5); 906(b)(9)
II-93; II-96
Charges
R.C.M. 905(b)(5); 906(b)(10)
II-93; II-97
Duplicious specification
R.C.M. 906(b)(5)
II-96
Burden of proof
R.C.M. 905(c)
II-93
Convening authority, submission to
R.C.M. 905(j)
II-95
Defined
R.C.M. 905(a)
II-92
Final determination, effect of
R.C.M. 905(g)
II-94
For finding of not guilty
R.C.M. 917
II-115
Generally
R.C.M. 905
II-92
Pretrial
R.C.M. 905(b)
II-93
Reconsideration
R.C.M. 905(f)
II-94
Res judicata
R.C.M. 905(g)
II-94
Rulings on
R.C.M. 905(d)
II-93
Scheduling
R.C.M. 801(a)(3)
II-75
Selection of members
R.C.M. 912(b)(1)
II-105
Special findings
R.C.M. 905(d)
II-93
_ See also_ **Special findings.**
Speedy trial, exclusion of time for
R.C.M. 707(c)(1)
II-73
To dismiss
Constructive condonation of desertion
R.C.M. 907(b)(2)(D)(iii)
II-99
Defined
R.C.M. 907(a)
II-97
Former jeopardy
R.C.M. 907(b)(2)(C)
II-98
Grounds generally
R.C.M. 907(b)
II-97
Immunity
R.C.M. 907(b)(2)(D)(ii)
II-98
Jurisdiction
R.C.M. 905(c)(2)(B); 907(b)(1)(A)
II-93; II-99
Multiplicity
R.C.M. 907(b)(3)(B)
II-99
Nonwaivable ground
R.C.M. 907(b)(1)
II-97
Pardon
R.C.M. 907(b)(2)(D)(i)
II-98
Prior punishment
R.C.M. 907(b)(2)(D)(iv)
II-99
Specification
Defective
R.C.M. 907(b)(3)(A)
II-99
Failure to state offense
R.C.M. 907(b)(1)(B)
II-98
Speedy trial
R.C.M. 905(c)(2)(B); 907(b)(2)(A)
II-93; II-98
Statue of limitations
R.C.M. 905(c)(2)(B); 907(b)(2)(B)
II-93; II-98
Waivable
R.C.M. 907(b)(2)
II-98
To suppress
Procedure concerning
Confessions and admissions
Mil. R. Evid. 304
III-4
Eyewitness identification
Mil. R. Evid. 321
III-16
Search and seizure
Mil. R. Evid. 311
III-8
Production of statements for
R.C.M. 905(k)
II-95
Time for
R.C.M. 905(b)(3)
II-93
Waiver
Conditional guilty plea, effect on
R.C.M. 910(a)(2)
II-102
Generally
R.C.M. 905(e)
II-94
Written
Discretion of military judge
R.C.M. 905(a); 905(h)
II-93; II-95
Generally
R.C.M. 905(h)
II-95
Service of
R.C.M. 905(i)
II-95
Motive
Other crimes, wrongs, or acts to prove
Mil. R. Evid. 404(b)
III-19
Statement of, as hearsay exception
Mil. R. Evid. 803(3)
III-44
To misrepresent, as impeachment
Mil. R. Evid. 608(c)
III-40
Motor vehicle. _ See_ Vehicle.
Multiplicity
Conspiracy, with substantive offense, not
IV-7
Generally
R.C.M. 307(c)(4); 1003(c)(1)(C)
II-29; II-129
Remedies available
Dismissal
R.C.M. 907(b)(3)(B)
II-99
Sentence limitation
R.C.M. 906(b)(12); 1003(c)(1)(C)
II-97; II-129
Murder
Assault with intent to commit
IV-104
Generally
IV-62
Unborn child, death of injury of
IV-64
Mutiny
Attempted
IV-5; IV-26
Generally
IV-26
Solicitation to commit
IV-7
Narcotics, offenses involving
IV-54
National security, disposition of charges affecting
R.C.M. 401(d); 407(b)
II-32; II-41
Neglects to prejudice of good order and discipline
IV-101
Negligence
Culpable, involuntary manslaughter
IV-65
Wanton
IV-63
Negligent homicide
IV-119
Neutral and detached officer
Pretrial confinement, reviewed by
R.C.M. 305(i)
II-23
Search authorization, required for
Mil. R. Evid. 315(d)
III-15
Neutral powers, citizens of, communicating with enemy
IV-42
New trial
Action by convening authority on
R.C.M. 1107(f)(5)(B)
II-160
Action when granted
R.C.M. 1210(h)
II-181
Grounds for
R.C.M. 1210(f)
II-180
Petition for
R.C.M. 1210(b); 1210(c); 1210(d);
II-179; II-180
R.C.M. 1210(e); 1210(g)
II-180
Procedures for
R.C.M. 810
II-85
Noncommissioned and petty officer
Apprehend, authority to
R.C.M. 302(b)(2)
II-18
Assault on
In execution of office
IV-21
Not in execution of office
IV-87
Disobedience of
IV-21
Disrespect toward
IV-21
Noncompliance with procedural rules, as offense
IV-32
Nonconsensual sexual offenses, defined
Mil. R. Evid. 412(e)
III-21
Nonjudicial punishment (Art. 15, UCMJ)
Administrative measures, relationship with
V. Para. 1g
V-2
Appeal of
Action by superior authority
V. Para. 7f
V-8
Format of
V. Para. 7c
V-8
Generally
V. Para. 7a
V-8
Legal review
V. Para. 7e
V-8
Time limit
V. Para. 7d
V-8
Who may act on
V. Para. 7b
V-8
Authority, commander's
I. Para. 2(b)(4); V. Para 1a; 2a
???; V-1; V-2
Double punishment prohibited
V. Para. 1f(1)
V-1
Effect of errors
V. Para. 1h
V-2
Generally
Part V
?????
Increase in punishment prohibited
V. Para. 1f(2)
V-1
Limitations on
V. Para. 1f
V-1
Minor offenses
Generally
V. Para. 1e
V-1
Trial by court-martial barred
R.C.M. 907(b)(2)(D)(iv)
II-99
Mitigation of punishment
V. Para. 6b
V-7
Nature
V. Para. 1b
V-1
Offense, disposition of
R.C.M. 306(c)(3); V. Para. 1
II-26; V-1
Policy
V. Para. 1d
V-1
Procedure
V. Para. 4
V-2
Punishments
Admonition
V. Para. 5c(1)
V-5
Arrest in quarters
V. Para. 5c(3)
V-5
Combinations, limitations
V. Para. 5d
V-6
Confinement on bread and water or diminished rations
V. Para. 5c(5)
V-6
Correctional custody
V. Para. 5c(4)
V-5
Extra duties
V. Para. 5c(6)
V-6
Forfeiture of pay
V. Para. 5c(8)
V-6
Limitations on
V. Para. 1f
V-1
Maximum authorized
V. Para. 5b
V-4
Reduction in grade
V. Para. 5c(7)
V-6
Reprimand
V. Para. 5c(1)
V-5
Restriction
V. Para. 5c(2)
V-5
Purpose
V. Para. 1c
V-1
Records of punishment
V. Para. 8
V-9
Remission of punishment
V. Para. 6c
V-8
Setting aside punishment
V. Para. 6d
V-8
Suspension of punishment
V. Para. 6a
V-7
Trial by court-martial, right to demand
V. Para. 3
V-2
Vessel, attached to or embarked in
V. Para. 3
V-2
Who may impose
Commander
V. Para. 2a
V-2
Officer in charge
V. Para. 2b
V-2
Principal assistant
V. Para. 2c
V-2
Nonmilitary property, waste, spoilage, or destruction
IV-49
Nonprivileged communications
Mil. R. Evid. 510
III-36
Not guilty, plea of
R.C.M. 910(a)
II-102
Notice
_ See also_ Disclosure and discovery.
To military judge of pretrial agreement
R.C.M. 910(f)(2)
II-103
Oaths
Affirmation, included in
R.C.M. 807(a)
II-82
Authority to administer
Art. 136, UCMJ
A2-35
Defense counsel
R.C.M. 807(b)
II-83
Defined
R.C.M. 807(a)
II-82
Deposition witness
R.C.M. 702(f)(4)
II-61
Escort
R.C.M. 807(b)
II-83
False swearing
IV-116
Forms of
R.C.M. 807(b)(2)
II-83
Fraud against United States, in connection with
IV-96
Generally
R.C.M. 807
II-82
Guilty plea, accused
R.C.M. 910(c)(5)
II-102
Interpreter
R.C.M. 807(b)
II-83
Investigation, pretrial, witnesses
R.C.M. 405(h)(1)
II-38
Members
R.C.M. 807(b)
II-83
Military judge
R.C.M. 807(b)
II-83
Perjury
IV-94
Preferral of charges
R.C.M. 307(b)
II-27
Probable cause information, not required
Mil. R. Evid. 315(f)(2)
III-15
Procedure
R.C.M. 807(b)(2)
II-83
Regulations of Secretary concerned
Art. 42(a), UCMJ; R.C.M. 807(b)
A2-12; ???
Reporter
R.C.M. 807(b)
II-83
Trial counsel
R.C.M. 807(b)
II-83
Witnesses
R.C.M. 807(b); Mil. R. Evid. 603
II-83; III-39
Obedience to orders, as a defense
R.C.M. 916(d)
II-111
Objection
See also Evidence, Objections; ** Motions.**
To evidence at pretrial investigation
R.C.M. 405(g)(4); 405(g)(5)
II-37; II-38
To trial by summary court-martial
R.C.M. 1303
II-183
Waiver, generally
R.C.M. 905(e); Mil. R. Evid. 103(a)
II-94; III-1
Obscene
_ See also_ Indecent.
IV-123
Obstructing justice
Generally
IV-124
Solicitation distinguished
IV-8
Occupied territory
Military jurisdiction exercised in
I. Para. 2(a)(3)
I-1
Violation of laws of
R.C.M. 201(f)(1)(B)
II-11
Offenses
_ See also_ specific offenses.
Disposition of
R.C.M. 306
II-25
Failure to report
IV-3
Joinder of
R.C.M. 601(e)(2)
II-54
Jurisdiction of courts-martial over
R.C.M. 203
II-15
Minor, disposition by nonjudicial punishment
V. Para. 1e
V-1
Report of
R.C.M. 301
II-17
Uncharged, action on
R.C.M. 801(d)
II-75
Offer of proof
Mil. R. Evid. 103(a)(2); 103(b)
III-1
Office hours. _ See_ Nonjudicial Punishment.
Officer
Commissioned
_ See also_ **Commissioned officer.**
Accused as, composition of court-martial
R.C.M. 502(a)(1)
II-43
Apprehend, authority to
R.C.M. 302(b)(2)
II-18
Assault on
In execution of office
IV-19
Not in execution of office
IV-87
Conduct unbecoming
IV-100
Dismissal by general court-martial
R.C.M. 1003(b)(8)(A)
II-128
Dismissal by President, right to request trial by court-
martial
R.C.M. 107
II-6
Disobedience of superior
IV-19
Disrespect toward superior
IV-17
Restraint of, pretrial
R.C.M. 304(b)
II-20
In charge
Authority to impose nonjudicial punishment
V. Para. 2b
V-2
Defined
Art. 1(4), UCMJ; R.C.M. 103(21)
A2-1; ???
Noncommissioned._ See_ Noncommissioned and
petty officer.
Petty._ See_ Petty officer.
Warrant._ See_ Warrant officer.
Official communications, privileges
Mil. R. Evid. 505; 506
III-25; III-30
Official documents
_ See also_ Evidence.
False
IV-46
Official records
_ See also_ Evidence.
Absence of, evidence
Mil. R. Evid. 803(7); 803(10)
III-45
Admissibility as evidence, general rule
Mil. R. Evid. 803(6); 803(8)
III-45
Attesting certificates
Mil. R. Evid. 902(4_ a_)
III-49
Authentication
Mil. R. Evid. 901; 902
III-48; III-49
Extract copies
Mil. R. Evid. 1006
III-50
Logs
Mil. R. Evid. 803(6); 803(8)
III-45
Military records
Mil. R. Evid. 803(6); 803(8)
III-45
Morning report
Mil. R. Evid. 803(6); 803(8)
III-45
Notes or memoranda, composed from
Mil. R. Evid. 803(6); 803(8)
III-45
Official publication of
Mil. R. Evid. 803(6); 803(8)
III-45
Self-authentication
Mil. R. Evid. 902
III-49
Service record
Mil. R. Evid. 803(6); 803(8)
III-45
Summaries of official records
Mil. R. Evid. 803(6); 803(8); 1006
III-45; III-50
Unit personnel diary
Mil. R. Evid. 803(6); 803(8)
III-45
Officials, contempt toward
IV-17
Official statement, false
IV-46
Opening mail
IV-122
Opinion evidence. _ See_ ** Evidence,** Opinion.
Orderly
Detailing
R.C.M. 501(c)
II-43
Disqualification
R.C.M. 502(e)(2); 502(f)
II-47
Duties
R.C.M. 502(e)(3)(C)
II-47
Qualifications
R.C.M. 502(e)(1)
II-47
Orders
_ See also_ Convening orders; Promulgating orders.
Failure to obey
IV-23
General orders, disobedience of
IV-23
Lawfulness
IV-20
Obedience to, as defense
R.C.M. 916(d)
II-111
Willful disobedience
IV-19; IV-21
Other trial
Action on
R.C.M. 1107(f)(5)(A)
II-159
Convening authority ordering
R.C.M. 1107(e)(2)
II-158
Defined
R.C.M. 810(e)
II-86
Procedure
R.C.M. 810(a); 810(b); 810(c)
II-85; II-86
Sentence limitations
R.C.M. 810(d)
II-86
Overt acts
Attempts
IV-5
Conspiracy
IV-6
Pandering
Forcible
IV-68
Generally
IV-125
Solicitation distinguished
IV-8
Pardon, motion to dismiss based on
R.C.M. 907(b)(2)(D)(i)
II-98
Parole, improper use of
IV-38
Party
To conspiracy
IV-6
To court-martial, defined
R.C.M. 103(16)
II-2
To offense
IV-1
Pass, false or unauthorized
IV-115
Patient-doctor, no privileged communication
Mil. R. Evid. 501(d)
III-22
Peace, breach of
IV-60
Peremptory challenges
R.C.M. 912(g)
II-107
Perjury
_ See also_ False swearing.
Generally
IV-94
Guilty plea inquiry, statements during
R.C.M. 910(c)(5)
II-102
Immunity, not extending to
R.C.M. 704(b)
II-68
New trial, grounds for
R.C.M. 1210(f)(3)
II-180
Subornation of
IV-127
Permits, false or unauthorized
IV-115
Perpetrator
_ See also_ Principals.
Defined
IV-1
Personnel of courts-martial
_ See also_ specific topics.
Announcement of
R.C.M. 813
II-88
Censure of, prohibited
R.C.M. 104
II-5
Changes of
R.C.M. 505
II-50
Detail of
R.C.M. 503
II-47
Generally
R.C.M. 501
II-43
Qualification and duties
R.C.M. 502
II-43
Personnel records, admissibility
Mil. R. Evid. 803(6); 803(8)
III-45
Petty officer
Apprehend, authority to
R.C.M. 302(b)(2)
II-18
Assault on
In execution of office
IV-21
Not in execution of office
IV-87
Contempt toward
IV-21
Disobedience
IV-21
Disrespect toward
IV-21
Photographs
Defined
Mil. R. Evid. 1001(2)
?????
Disclosure by defense
R.C.M. 701(b)(3)
II-58
Disclosure upon defense request
R.C.M. 701(a)(2)(A)
II-57
Taking in courtroom, prohibited
R.C.M. 806(c)
II-82
Physical examination
Disclosure by defense
R.C.M. 701(b)(4)
II-58
Disclosure upon defense request
R.C.M. 701(a)(2)(B)
II-57
Not an unlawful search
Mil. R. Evid. 312(f)
III-11
Physical inability, as a defense
R.C.M. 916(i)
II-113
Physician, no privileged communication to
Mil. R. Evid. 501(d)
III-22
Pillaging
IV-33; IV-39
Place of court-martial
Change of
R.C.M. 906(b)(11)
II-97
Convening authority
Designating
R.C.M. 504(d)(1); 504(d)(2)
II-50
Responsibility
R.C.M. 504(e)
II-50
Jurisdiction, not affected
R.C.M. 201(a)(3)
II-9
Plain error
Mil. R. Evid. 103(d)
III-1
Plan or design of accused, evidence of
Mil. R. Evid. 404(b)
III-19
Plane. _ See_ Aircraft.
Pleadings. _ See_ Charges and specifications.
Pleas
Alternatives
R.C.M. 910(a)
II-102
Arraignment
R.C.M. 904
II-92
Article 39(a) session, taking at
R.C.M. 910(e)
II-103
Capital case
R.C.M. 910(a)(1)
II-102
Change
R.C.M. 910(h)(1)
II-104
Conditional guilty
R.C.M. 910(a)(2)
II-102
Defenses and objections before entered
R.C.M. 905(b)
II-93
Exceptions and substitutions
R.C.M. 910(a)(1)
II-102
Failure to plead
R.C.M. 910(b)
II-102
Generally
R.C.M. 910
II-102
Guilty
Accuracy, determination of
R.C.M. 910(e)
II-103
Advice to accused
R.C.M. 910(c)
II-102
Capital cases, prohibited in
R.C.M. 910(a)(1)
II-102
Effect of
R.C.M. 910(c)
II-102
Factual basis required
R.C.M. 910(e)
II-103
False statements during inquiry
R.C.M. 910(c)(5)
II-102
Findings
R.C.M. 910(g)
II-103
Generally
R.C.M. 910(c); 910(d); 910(e)
II-102; II-103
Improvidently entered
R.C.M. 910(d); 910(e)
II-103
Inconsistent matters after plea
R.C.M. 910(e)
II-103
Inconsistent statements after findings
R.C.M. 910(h)(2)
II-104
Inquiry
R.C.M. 910(c); 910(d); 910(e)
II-102; II-103
Oath
R.C.M. 910(c)(5)
II-102
Pretrial agreement inquiry
R.C.M. 910(f); 910(h)(3)
II-103; II-104
Procedure
Consultation with counsel
R.C.M. 502(d)(6)
II-46
Explanation to accused of effect
R.C.M. 910(c)
II-102
Record of explanation and reply
R.C.M. 910(i)
II-104
Rehearings, changing
R.C.M. 810(a)(2)(B)
II-85
Statements during providency
Inadmissible on merits
Mil. R. Evid. 410
III-20
Inconsistent with plea
R.C.M. 910(h)(2)
II-104
Summary courts-martial
R.C.M. 1304(b)(2)(D)(ii)
II-185
Voluntariness
R.C.M. 910(d)
II-103
Vote, necessity of
R.C.M. 910(g)(3)
II-103
Waiver of objections by
R.C.M. 910(j)
II-104
Withdrawal after findings
R.C.M. 910(h)(1)
II-104
Irregular
R.C.M. 910(b)
II-102
Nondisclosure of guilty plea negotiations
Mil. R. Evid. 410
III-20
Refusal to enter
R.C.M. 910(b)
II-102
Rehearings
R.C.M. 810(a)(1); 810(a)(2)(B)
II-85
Summary courts-martial
Entry of pleas
R.C.M. 1304(b)(2)(D)
II-184
Explanation to accused
R.C.M. 1304(b)(1)(H)
II-184
Plunder
IV-33
Police. _ See_ Law enforcement official.
Political vote, privilege
Mil. R. Evid. 508
III-36
Polling of members, prohibited
R.C.M. 922(e); 1007(c)
II-121; II-137
Exception
Mil. R. Evid. 606
III-40
Polygamy, testimony of spouse
Mil. R. Evid. 504
III-24
Polygraph Examination
Mil. R. Evid. 707
III-43
Possession of controlled substance
IV-54
Post-trial confinement
R.C.M. 1101(b)
II-139
_ See also_ Confinement.
Post-trial procedure
_ See also_ specific topics.
Disposition of record of trial
R.C.M. 1111
II-166
Generally
Chapter XI
?????
Matters submitted by accused
Contents
R.C.M. 1105(b)
II-150
Right to
R.C.M. 1105(a)
II-150
Time periods
R.C.M. 1105(c)
II-150
Waiver
R.C.M. 1105(d)
II-151
Review by a judge advocate
R.C.M. 1112
II-166
Summary courts-martial
R.C.M. 1306
II-186
Post-trial recommendation
R.C.M. 1106
II-152
_ See also_ Staff judge advocate.
Post-trial sessions
Article 39(a) sessions
R.C.M. 1102(b)(2)
II-141
Findings; lack of mental responsibility
R.C.M. 1102A
II-142
Generally
R.C.M. 1102
II-141
Matters precluded from
R.C.M. 1102(c)
II-141
Procedure
Action by military judge, members
R.C.M. 1102(e)(2)
II-142
Personnel
R.C.M. 1102(e)(1)
II-142
Record
R.C.M. 1102(e)(3)
II-142
Proceedings in revision
R.C.M. 1102(b)(1)
II-141
When directed
R.C.M. 1102(d)
II-141
Preferral of charges
Accuser._ See_ Accuser.
Attachment of jurisdiction, effecting
R.C.M. 202(c)(2)
II-15
Charge, defined
R.C.M. 307(c)(2)
II-27
Deposition, requisite to
R.C.M. 702(a)
II-60
Generally
R.C.M. 307
II-27
Motion as to defects in
R.C.M. 905(b)(1)
II-93
Notification to accused of
R.C.M. 308
II-30
Oath required
R.C.M. 307(b)(1)
II-27
Procedure
R.C.M. 307(b)
II-27
Speedy trial, effect of
R.C.M. 707(a); 707(b)
II-72; II-73
Waiver of defects in, by failure to raise
R.C.M. 905(e)
II-94
Who may prefer
R.C.M. 307(a)
II-27
Preliminary inquiry
R.C.M. 303
II-19
Preliminary questions
Mil. R. Evid. 104
III-1
Premeditation
IV-63
Preparation of record of trial. _ See_ Record of trial.
Presentation of case on merits
R.C.M. 913
II-107
_ See also_ specific topics.
Presentencing procedure
Accused, statement by
R.C.M. 1001(c)(2)
II-125
Arguments
R.C.M. 1001(g)
II-126
Defense, matters presented by
R.C.M. 1001(c)
II-125
Deposition, for use at
R.C.M. 702(c)(3)(B)
II-61
Evidence for
Discovery of
R.C.M. 701(a)(5)
II-57
Production of
R.C.M. 703(f)
II-67
Generally
R.C.M. 1001
II-123
Production of witnesses
R.C.M. 1001(e)
II-125
Prosecution, matters presented by
R.C.M. 1001(b)
II-123
Rebuttal
R.C.M. 1001(d)
II-125
Rehearings
R.C.M. 810(a)(2)
II-85
Presenting false claim
IV-96
President of court-martial
Duties
Deliberations
R.C.M. 921(a); 1006(b)
II-119; II-135
Findings, announcing
R.C.M. 922(b)
II-121
Generally
R.C.M. 502(b)(2)
II-44
Sentence, announcing
R.C.M. 1007(a)
II-136
Voting
R.C.M. 921(c)(6); 1006(d)(3)(B)
II-120; II-136
Qualifications
R.C.M. 502(b)(1)
II-44
Special court-martial without military judge
Conferences prohibited
R.C.M. 802(f)
II-78
Duties of
R.C.M. 502(b)(2)(C)
II-44
"Military judge" including
R.C.M. 103(15); 502(b)(2)(C)
II-2; II-44
Rulings of
R.C.M. 801(e)(2); 801(e)(3)
II-76
President of the United States
Capital cases, approval of sentence
R.C.M. 1207
II-178
Contempt toward
IV-17
Courts-martial, power to convene
Art. 22, UCMJ; R.C.M. 504(b)(1)
A2-7; ???
Dismissal of officer, right to trial
R.C.M. 107
II-6
Military Rules of Evidence, action concerning amendments
Mil. R. Evid. 1102
III-51
Presumption
Innocence, instruction on
R.C.M. 920(e)(5)(A)
II-119
Mental capacity
R.C.M. 909(b)
II-101
Mental responsibility
R.C.M. 916(k)(3)(A)
II-115
Witness competency
Mil. R. Evid. 601
III-39
Pretense, false
IV-74; IV-116
Pretrial advice
R.C.M. 406
II-40
_ See also_ Advice, pretrial.
Pretrial agreements
Action pursuant to
R.C.M. 705(b)(2)(E)
II-70
Authority to enter
R.C.M. 705(a); 705(d)(4)
II-69; II-71
Conditional guilty plea
R.C.M. 910(a)(2)
II-102
Confessional stipulation
R.C.M. 705(b)(1)
II-69
Disclosure of
Plea negotiations, prohibited
Mil. R. Evid. 410
III-20
To members, prohibited
R.C.M. 705(e)
II-71
To military judge before plea
R.C.M. 910(f)(3)
II-103
Generally
R.C.M. 705
II-69
Inquiry by military judge
R.C.M. 910(f)(4); 910(h)(3)
II-103; II-104
Nature of
R.C.M. 705(b)
II-69
Notice of, to military judge
R.C.M. 910(f)(2)
II-103
Procedure to obtain
Acceptance
R.C.M. 705(d)(3)
II-71
Formal submission
R.C.M. 705(d)(2)
II-70
Negotiation
R.C.M. 705(d)(1)
II-70
Offer
R.C.M. 705(d)(1)
II-70
Referral pursuant to
R.C.M. 705(b)(2)(A); 705(b)(2)(B)
II-70
Sentence, effect at rehearing
R.C.M. 810(d)(2)
II-86
Terms and conditions
Generally
R.C.M. 705(c)
II-70
Permissible terms
R.C.M. 705(c)(2)
II-70
Prohibited terms
R.C.M. 705(c)(1)
II-70
Withdrawal of
Charges pursuant to
R.C.M. 705(b)(2)(C)
II-69
Parties to
R.C.M. 705(d)(4)
II-71
Pretrial confinement. _ See_ ** Confinement,** pretrial.
Pretrial investigation
R.C.M. 405
II-34
_ See also_ Investigation, pretrial.
Principal assistant, delegation to
Excuse members
R.C.M. 505(c)(1)(B)
II-50
Nonjudicial punishment authority
V. Para. 2c
V-2
Principals
Accessory after the fact, relationship
IV-3
Aider and abettor
IV-1
Generally
IV-1
Perpetrator
IV-1
Pleading
R.C.M. 307(c)(3)
II-27
Prior testimony, admissibility
Mil. R. Evid. 804(b)(1)
III-47
Prisoner
_ See also_ Confinement.
Authority to release
From post-trial confinement
R.C.M. 1101(b)(2)
II-139
From pretrial confinement
R.C.M. 305(g)
II-22
Drinking liquor with
IV-114
Drunk
IV-114
Jurisdiction over
Art. 2(a)(7), UCMJ; R.C.M. 202(a)
A2-2; ???
Release of, without proper authority
IV-31
Suffering to escape
IV-31
Prisoner of war
Jurisdiction over
Art. 2(a)(9), UCMJ; R.C.M. 202(a)
A2-2; ???
Misconduct as
IV-42
Privileged matter. _ See_ ** Evidence,**Privileges.
Probable cause
_ See also_ Search and seizure.
Apprehension
R.C.M. 302(c)
II-18
Confinement
Pending vacation of suspension
R.C.M. 1109(c)(3)
II-161
Pretrial
R.C.M. 305(d); 305(h)(2)(B)
II-21; II-23
Restraint, pretrial
R.C.M. 304(c)
II-20
Search
Mil. R. Evid. 315(f)
III-15
Seizure
Mil. R. Evid. 316(b)
III-15
Probation
_ See also_ Suspension of sentence.
Generally
R.C.M. 1108
II-160
Pretrial agreement
R.C.M. 705(c)(2)(D)
II-70
Proceedings in revision
R.C.M. 1102(b)(1)
II-141
Procuring another to commit offense
IV-1
Production of witnesses and evidence
_ See also_ Witness.
Evidence
R.C.M. 703(a); 703(f)
II-63; II-67
Expert witnesses
R.C.M. 703(d)
II-64
Generally
R.C.M. 703
II-63
Interlocutory questions
R.C.M. 703(b); 703(c)
II-63; II-64
Investigation, pretrial
R.C.M. 405(g)
II-35
Merits
R.C.M. 703(b); 703(c)
II-63; II-64
Procedure
R.C.M. 703(e); Appendix 7
II-64; A7-1
Sentencing
R.C.M. 703(b)(2); 1001(e)
II-63; II-126
Statements of witnesses
R.C.M. 914
II-109
Unavailable evidence
R.C.M. 703(f)(2)
II-67
Unavailable witness
R.C.M. 703(b)(3)
II-63
Professional supervision, military judges and counsel
R.C.M. 109
II-6
Promulgating orders
Authentication
R.C.M. 1114(e)
II-171
Classified information
R.C.M. 1114(d)
II-171
Contents
R.C.M. 1114(c)
II-170
Distribution
R.C.M. 1114(f)
II-171
Forms for
Appendix 17
A17-1
Generally
R.C.M. 1114
II-170
Summary court-martial, not issued for
R.C.M. 1114(a)(3)
II-170
Who issues
R.C.M. 1114(b)
II-170
Property
Captured or abandoned, offenses concerning
IV-39
Military, offenses concerning
IV-47
Nonmilitary, offenses concerning
IV-49
Preventing seizure of
IV-129
Prosecutor. _ See_ Counsel; Trial counsel.
Prosecutorial discretion
Commander
R.C.M. 306
II-25
Convening authority
R.C.M. 401
II-31
Trial counsel
R.C.M. 502(d)(5)
II-45
Prostitution
IV-125
Protecting the enemy
IV-41
Provoking speech and gestures
Breach of peace
IV-60; IV-62
Generally
IV-61
Provost courts
Contempt power
Art. 48, UCMJ
A2-14
Jurisdiction
Concurrent with other tribunals
R.C.M. 201(g)
II-12
Generally
I. Para. 2(b)(2)
I-1
Psychiatrist
Mental examination of accused by
R.C.M. 706(c)(1)
II-72
Privileged communications
Mil. R. Evid. 513
III-37
Public record, offenses concerning
IV-127
_ See also_ Evidence.
Public trial
R.C.M. 806
II-81
Closure
R.C.M. 806(b)(2)
II-82
Control of spectators
R.C.M. 806(b)(1)
II-81
Punishments
_ See also_ specific topics.
Courts-martial
Authorized
R.C.M. 1003(b)
II-127
Confinement
R.C.M. 1003(b)(7)
II-128
Confinement on bread and water or diminished rations
R.C.M. 1003(b)(7)
II-128
Death
R.C.M. 1003(b)(9)
II-129
Fine
R.C.M. 1003(b)(3)
II-127
Forfeiture of pay and allowances
R.C.M. 1003(b)(2)
II-127
General courts-martial
R.C.M. 201(f)(1)(A)(ii); 201(f)(1)(B)(ii)
II-11
Generally
R.C.M. 1003
II-127
Hard labor without confinement
R.C.M. 1003(b)(6)
II-128
Increase in, circumstances permitting
R.C.M. 1003(d)
II-131
Law of war
R.C.M. 1003(b)(10)
II-129
Limits
R.C.M. 1003(c)
II-129
Maximum punishment chart
Appendix 12
A12-1
Punitive separation
R.C.M. 1003(b)(8)
II-128
Reduction in grade
R.C.M. 1003(b)(4)
II-128
Reprimand
R.C.M. 1003(b)(1)
II-127
Restitution
Not authorized
R.C.M. 201(a)
II-9
Pretrial agreement, permissible condition
R.C.M. 705(c)(2)(C)
II-70
Restriction to specified limits
R.C.M. 1003(b)(5)
II-128
Special courts-martial
R.C.M. 201(f)(2)(B)
II-12
Summary courts-martial
R.C.M. 1301(c); 1301(d)
II-182
Nonjudicial._ See_ Nonjudicial punishment.
Prior, for minor offense, barring court-martial
R.C.M. 907(b)(2)(D)(iv)
II-99
Punitive articles
Part IV
?????
_ See also_ specific offenses.
Qualifications
Assistant counsel
R.C.M. 502(d)(2)
II-44
Associate defense counsel
R.C.M. 502(d)(1)
II-44
Bailiff
R.C.M. 502(e)(1)
II-47
Clerk
R.C.M. 502(e)(1)
II-47
Counsel
R.C.M. 502(d)
II-44
Defense Counsel
R.C.M. 502(d)(1); 502(d)(3)
II-44
Deposition officer
R.C.M. 702(d)(1)
II-61
Escort
R.C.M. 502(e)(1)
II-47
Individual counsel
R.C.M. 502(d)(3)
II-44
Interpreter
R.C.M. 502(e)(1); Mil. R. Evid. 604
II-47; III-39
Lack of, action on discovery
R.C.M. 502(f)
II-47
Members
R.C.M. 502(a)(1)
II-43
Military judge
R.C.M. 502(c)
II-44
Orderly
R.C.M. 502(e)(1)
II-47
President of court-martial
R.C.M. 502(b)(1)
II-44
Reporter
R.C.M. 502(e)(1)
II-47
Trial counsel
R.C.M. 502(d)(1); 502(d)(2)
II-44
Quarantine, medical, breaking
IV-128
Questions
_ See also_ Testimony; Witness.
Ambiguous and misleading
Mil. R. Evid. 611(a)
III-41
Control by military judge
Mil. R. Evid. 611(a)
III-41
Degrading
Mil. R. Evid. 303; 611(a)
III-4; III-41
Improper, insulting
Mil. R. Evid. 611(a)
III-41
Interlocutory._ See_ Interlocutory questions.
Leading
Mil. R. Evid. 611(c)
III-41
Refusal to answer, as offense
IV-132
Suggesting inadmissible matter
Mil. R. Evid. 611(a)
III-41
Questions of law, rulings on
R.C.M. 801(a)(4); 801(e)(1); 801(e)(2)
II-75; II-76
Quitting guard
IV-13
_ See also_ Sentinel or lookout.
Quitting place of duty to avoid hazardous duty
IV-10
Quitting place of duty to plunder or pillage
IV-33
Radio, broadcasting from courtroom
R.C.M. 806(c)
II-82
Rape
Assault with intent to commit
IV-104
Evidence of similar crimes
Mil. R. Evid. 413; 414
III-21; III-22
Generally
IV-68
Murder while committing
IV-62
Unborn child, death or injury of
IV-4
"Rape shield"
Mil. R. Evid. 412
III-20
Reasonable doubt
Guilt, basis for finding of
R.C.M. 918(c)
II-117
Instruction on
R.C.M. 920(e)(5)
II-119
Rebuttal, evidence in
R.C.M. 913(c)(1)(C); 1001(d)
II-108; II-125
Receipt
Delivering less than amount called for by
IV-96
False
IV-96
Making or delivering, without knowledge of facts
IV-96
Receiving stolen property
IV-131
Recess, announcement of personnel after
R.C.M. 813(b)
II-88
Reciprocal jurisdiction
R.C.M. 201(e)
II-10
Reckless endangerment
IV-128
Recklessly operating vehicle
IV-51
Recollection refreshed
Mil. R. Evid. 612
III-42
**Recommendation of staff judge advocate or legal officer on
post-trial action**
Disqualification
R.C.M. 1106(b)
II-152
Form and content
R.C.M. 1106(d)
II-152
Generally
R.C.M. 1106
II-152
Guilty, no findings of
R.C.M. 1106(e)
II-153
Service on defense counsel
R.C.M. 1106(f)
II-153
Reconsideration
Findings
R.C.M. 924
II-121
Rulings by military judge
R.C.M. 905(f)
II-94
Sentence
R.C.M. 1009
II-137
Record of nonjudicial punishment
V. Para. 8
V-9
Record of trial
Acquittal
R.C.M. 1103(e)
II-144
Appeal by United States, prepared in
R.C.M. 908(b)(5)
II-100
Audiotape
R.C.M. 1103(j)
II-146
Authentication
R.C.M. 1104(a)
II-147
Contempt proceedings
R.C.M. 809(d)
II-85
Copies
General and special courts-martial
R.C.M. 1103(g)(1)
II-144
Summary court-martial
R.C.M. 1305(b)
II-186
Correction, certificate of
R.C.M. 1104(d)
II-149
Disposition of after action
R.C.M. 1111
II-166
Examination and correction before authentication
By defense counsel
R.C.M. 1103(i)(1)(B)
II-145
By summary court-martial
R.C.M. 1103(i)(2); 1305(b)
II-146; II-186
By trial counsel
R.C.M. 1103(i)(1)(A)
II-145
Forwarding
R.C.M. 1104(e)
II-150
General courts-martial, contents
R.C.M. 1103(b)(2)
II-143
Generally
R.C.M. 1103; 1104
II-142; II-147
Guide for preparing summarized record
Appendix 13
A13-1
Guide for preparing verbatim records
Appendix 14
A14-1
Guilty plea, requirements
R.C.M. 910(i)
II-104
Loss of notes or recordings
R.C.M. 1103(f)
II-144
Loss of records
R.C.M. 1104(c)
II-149
New trial, use at
R.C.M. 810(c)
II-86
Not guilty, lack of mental responsibility
R.C.M. 1103(e)
II-144
Other trial, use at
R.C.M. 810(c)
II-86
Preparation of
R.C.M. 1103
II-142
Recommendation of staff judge advocate or legal officer,
before action on
R.C.M. 1106
II-152
Rehearing, use at
R.C.M. 810(a)(2); 810(c)
II-85; II-86
Security classification
R.C.M. 1103(h)
II-145
Service
R.C.M. 1104(b)
II-148
Special courts-martial, contents
R.C.M. 1103(c)
II-144
Summary courts-martial, contents
R.C.M. 1305; Appendix 15
II-185; A15-1
Termination prior to findings
R.C.M. 1103(e)
II-144
Trial counsel
Examination by
R.C.M. 1103(i)(1)(A)
II-145
Responsibility for
R.C.M. 808; 1103(b)(1)
II-84; II-143
Verbatim
R.C.M. 1103(b)(2)(B); 1103(c)(1)
II-143; II-144
Videotape
R.C.M. 1103(j)
II-146
Views and inspections
R.C.M. 913(c)(3)
II-108
Record, public, altering, concealing, removing, mutilating,
obliterating, destroying
IV-127
Recusal of military judge
R.C.M. 902
II-90
Redress of grievances
Art. 138, UCMJ
A2-36
Referral of charges
Accuser, disqualified
R.C.M. 601(c)
II-53
Authority to
R.C.M. 601(b)
II-53
Basis for
R.C.M. 601(d)(1)
II-53
Capital offense
Referred as noncapital
R.C.M. 201(f)(1)(A)(iii)(b)
?????
To special court-martial
R.C.M. 201(f)(2)(C)
II-12
Defined
R.C.M. 601(a)
II-53
Disqualification
R.C.M. 601(c)
II-53
Instructions
R.C.M. 601(e)(1)
II-53
General courts-martial
R.C.M. 407(a)(6); 601(d)(2)
II-41; II-53
Joinder of
Accused
R.C.M. 601(e)(3)
II-54
Offenses
R.C.M. 601(e)(2)
II-54
Jurisdictional requisite, as
R.C.M. 201(b)(3)
II-9
Motion as to defect in
R.C.M. 905(b)(1); 905(e)
II-93; II-94
National security, affecting
R.C.M. 401(d); 407(b)
II-32; II-41
Order of
R.C.M. 601(e)(1)
II-53
Pretrial agreement concerning
R.C.M. 705(b)(2)(A); 705(b)(2)(B)
II-71
Procedure
R.C.M. 601(e)
II-53
Special courts-martial
R.C.M. 404(d); 601(d)(1)
II-33; II-53
Summary courts-martial
R.C.M. 403(b)(4); 601(d)(1)
II-33; II-53
Superior convening authority, powers regarding
R.C.M. 601(f)
II-54
War, effect on
R.C.M. 401(d); 407(b)
II-32; II-41
Withdrawn charges
R.C.M. 604(b)
II-56
Withholding, authority to
R.C.M. 601(b)
II-53
Refreshing recollection
Mil. R. Evid. 612
III-42
Refusal to testify, wrongful
IV-132
Regulations, failure to obey
IV-23
Rehearing
Action on
R.C.M. 1107(f)(5)
II-159
Former testimony, admissibility at
Mil. R. Evid. 804(b)(1)
III-47
Ordering
R.C.M. 1107(c)(2)(B); 1107(e)(1)
II-156; II-157
Procedure
Composition
R.C.M. 810(b)
II-86
Generally
R.C.M. 810
II-85
Record, examination of
R.C.M. 810(c)
II-86
Sentence limitations
R.C.M. 810(d)
II-86
Pretrial agreement, effect of
R.C.M. 810(d)(2)
II-86
Releasing prisoner without proper authority
IV-31
Relevancy. _ See_ Evidence.
Relief, not affording, before enemy
IV-33
Religious beliefs or opinions, not subject to inquiry
Mil. R. Evid. 610
III-41
Remission of
Nonjudicial punishment
V. Para. 6c
V-8
Sentence
Generally
R.C.M. 1108(a)
II-160
Of suspension
R.C.M. 1108(e)
II-161
Who may remit
Convening authority
R.C.M. 1108(b)
II-160
Judge Advocate General, The
R.C.M. 1201(c)
II-173
Service Secretary
R.C.M. 1206(b)(1)
II-178
Reopening case
R.C.M. 913(c)(5)
II-109
Report of
Offense
Failure to make
IV-3
Generally
R.C.M. 301
II-17
Result of trial
R.C.M. 1101(a)
II-139
Reporter
Announcement of
R.C.M. 813(a)(8)
II-88
At investigation, pretrial
R.C.M. 405(d)(3)(B)
II-35
Detailing
R.C.M. 501(c)
II-43
Disqualification
R.C.M. 502(e)(2); 502(f)
II-47
Duties
R.C.M. 502(e)(3)(B)
II-47
Oath
Administered
R.C.M. 807(b); 901(c)
II-83; II-89
Status as to
R.C.M. 901(c)
II-89
Payment of
R.C.M. 502(e)(4)
II-47
Qualifications
R.C.M. 502(e)(1)
II-47
Record of trial, preparation
R.C.M. 1103; 1104
II-142; II-147
_ See also_ **Record of trial.**
Reprimand
Court-martial, military judge, member, counsel, prohibited
R.C.M. 104(a)(1)
II-4
Nonjudicial punishment
V. Para. 5c(1)
V-5
Sentence
R.C.M. 1003(b)(1)
II-127
Reproachful speech or gestures
IV-61
Reputation. _ See_ Evidence, Character.
Requesting commission of offense
IV-129
Rescission of deferment of confinement
R.C.M. 1101(c)(6)(D); 1101(c)(7)
II-140
Reserve personnel, eligibility for court-martial duty
R.C.M. 502(a)(1)
II-43
Resignation, quitting post or duties before
notification of acceptance, as desertion
IV-10
Resisting apprehension
IV-28
Res judicata
R.C.M. 905(g)
II-94
Restoration
Generally
R.C.M. 1208
II-178
To duty, as condonation of desertion
R.C.M. 907(b)(2)(D)(iii)
II-99
Restraint
Attachment of jurisdiction, effecting
R.C.M. 202(c)(2)
II-15
During trial
R.C.M. 804(e)(3)
II-80
Pretrial
_ See also_ **Confinement,** pretrial.
Authority to order
R.C.M. 304(b)
II-20
Generally
R.C.M. 304; 305; 804(c)(2)
II-19; II-21; II-79
Grounds
R.C.M. 304(c)
II-20
Limitations
R.C.M. 304(f)
II-21
Types of
R.C.M. 304(a)
II-19
Restriction
Administrative
R.C.M. 304(h)
II-21
Attachment of jurisdiction, effect of
R.C.M. 202(c)(2)
II-15
Breaking
IV-129
Defined
IV-129; ???
Nonjudicial punishment
V. Para. 5c(2)
V-5
Pretrial
Defined
R.C.M. 304(a)(2)
II-19
Grounds for
R.C.M. 304(c)
II-20
Notice to accused
R.C.M. 304(e)
II-21
Procedure
R.C.M. 304(d)
II-20
Release
R.C.M. 304(g)
II-21
Speedy trial, effect on
R.C.M. 707(a); 707(b)
II-72; II-73
Who may order
R.C.M. 304(b)
II-20
Sentence by court-martial
R.C.M. 1003(b)(5)
II-128
Result of trial, report of
R.C.M. 1101(a)
II-139
Retired personnel, eligibility for court-martial duty
R.C.M. 502(a)(1)
II-43
Review of courts-martial. _ See_ ** Action of convening authority; Appellate review.**
Riot
IV-60
Robbery
Assault with intent to commit
IV-104
Generally
IV-78
Murder while committing
IV-62
Unborn child, death or injury of
IV-4
Routine practice, evidence of
Mil. R. Evid. 406
III-19
Rules for Courts-Martial (R.C.M.)
Analysis
Appendix 21
A21-1
Construction
R.C.M. 102(b)
II-1
Purpose
R.C.M. 102(a)
II-1
Scope
R.C.M. 101(a)
II-1
Title
R.C.M. 101(b)
II-1
Rules of court
Authority to make
R.C.M. 108; 801(b)(1)
II-6; II-75
Enforcement
R.C.M. 801(b)(1)
II-75
Safeguard, forcing
IV-38
Safety of command, unit, place, or military property,
endangering
IV-33
Sale, unlawful, military property
IV-47
Sanity. _ See_ Mental capacity; Mental responsibility.
Scene of accident, fleeing
IV-118
Search and Seizure
Abandoned property, seizure of
Mil. R. Evid. 316(d)(1)
?????
Adequate interest to challenge
Mil. R. Evid. 311(a)(2)
III-8
Anal searches
Mil. R. Evid. 312(c)
III-10
Authorization, when required
Mil. R. Evid. 312(e)
III-11
Defined
Mil. R. Evid. 312(a)
III-10
Entry to, requirements for
Mil. R. Evid. 312(e)
III-11
Grounds
Mil. R. Evid. 312(c)
III-10
How made
Mil. R. Evid. 312(e)
III-11
Power to apprehend (Art. 7, UCMJ)
R.C.M. 302(b)
II-17
Probable cause to
Mil. R. Evid. 312(e)
III-11
Search incident to
Generally
Mil. R. Evid. 314(g)
III-13
Scope
Mil. R. Evid. 314(g)(2); 314(g)(3)
III-13; III-14
Warrant, when required
Mil. R. Evid. 302(e)
III-4
Attenuation
Mil. R. Evid. 311(e)(2)
?????
Authorization to
Apprehend, when required
R.C.M. 302
II-17
Search
Basis
Mil. R. Evid. 315(f)
III-15
Defined
Mil. R. Evid. 315(b)(1)
III-14
Execution of
Mil. R. Evid. 315(h)
?????
Power to grant
Mil. R. Evid. 315(d)
III-15
Power to search
Mil. R. Evid. 315(e)
III-15
Rules of evidence not applicable to determination
Mil. R. Evid. 1101(d)
III-51
Scope
Mil. R. Evid. 315(c)
III-14
Seize
Mil. R. Evid. 316(d)(4)(A)
?????
Automobile searches
Based upon probable cause
Mil. R. Evid. 315(g)(3)
?????
Incident to apprehension
Mil. R. Evid. 314(g)(2)
III-13
On less than probable cause
Mil. R. Evid. 314(f)(3)
III-13
Blood samples._ See_ Body views and intrusions, this heading.
Body views and intrusions
Extraction of body fluid
Mil. R. Evid. 312(d)
III-11
Generally
Mil. R. Evid. 312(a)
III-10
Inspections
Body view during
Mil. R. Evid. 312(b)(2)
III-10
Urine production
Mil. R. Evid. 313(b)
III-11
Intrusions for medical purposes
Mil. R. Evid. 312(f)
III-11
Intrusions, generally
Mil. R. Evid. 312(c)
III-10
Intrusions into body cavities
Mil. R. Evid. 312(c)
III-10
Medical qualifications
Mil. R. Evid. 312(g)
III-11
Visual examination of the body
Mil. R. Evid. 312(b)
III-10
Border searches
Mil. R. Evid. 314(b)
III-12
Burden of proof
General
Mil. R. Evid. 311(e)
III-10
Government's burden enhanced
Consent, voluntariness
Mil. R. Evid. 314(e)(5)
III-13
Inspections
Mil. R. Evid. 313(b)
III-11
On the accused
Adequate interest, standing
Mil. R. Evid. 311(a)(2)
III-8
False statements, challenging probable cause
Mil. R. Evid. 311(g)(2)
?????
Commander
Neutral and detached
Mil. R. Evid. 315(d)
III-15
Power to authorize search
Mil. R. Evid. 315(d)(1)
III-15
Confinement facilities, searches within
Mil. R. Evid. 314(h)
III-14
Consent
Body views
Mil. R. Evid. 312(b)(1)
III-10
Entry to apprehend
R.C.M. 302(e)(2)(A)
II-18
To search
Mil. R. Evid. 314(e)
III-12
To seize
Mil. R. Evid. 316(d)(2)
?????
Voluntariness, burden of proof
Mil. R. Evid. 314(e)(5)
III-13
Who can consent
Mil. R. Evid. 314(e)(2)
III-12
Derivative evidence
Mil. R. Evid. 311(e)(2)
?????
Detention, investigative of
Persons
Mil. R. Evid. 314(f)(1)
III-13
Property
Mil. R. Evid. 316(d)(5)
?????
Disclosure
Mil. R. Evid. 311(d)(1)
III-9
Eavesdropping
Mil. R. Evid. 317
III-16
Emergency searches
Mil. R. Evid. 314(i)
III-14
Entry and exit points
Inspections at
Mil. R. Evid. 313(b)
III-11
Overseas, searches
Mil. R. Evid. 314(c)
III-12
Entry to apprehend, requirements for
R.C.M. 302(e)(2)
II-18
Exclusionary rule
General
Mil. R. Evid. 311(a)
III-8
Wire and oral communications
Mil. R. Evid. 317
III-16
Exigent circumstances
Entry to apprehend
R.C.M. 302(e)(2)(B)
II-18
Search
Mil. R. Evid. 315(g)
III-15
Seize
Mil. R. Evid. 316(d)(4)(B)
?????
False statement in support of probable cause
Mil. R. Evid. 311(g)(2)
?????
Foreign officials, search by
Mil. R. Evid. 311(c)(3)
III-9
Frisks
Mil. R. Evid. 314(f)(2)
III-13
Government property
Search of
Mil. R. Evid. 314(d)
III-12
Seizure of
Mil. R. Evid. 316(d)(3)
?????
Guilty plea
Conditional to preserve motions
R.C.M. 910(a)(2)
II-102
Waiver by
Mil. R. Evid. 311(i)
?????
Impeachment by contradiction, using illegally seized
evidence for
Mil. R. Evid. 311(b)(1)
III-8
Incident to apprehension
Mil. R. Evid. 314(g)
III-13
Independent source
Mil. R. Evid. 311(e)(2)
?????
Inevitable discovery
Mil. R. Evid. 311(e)(2)
?????
Informant, identity of, privilege
Mil. R. Evid. 507
III-35
Inspections
Generally
Mil. R. Evid. 313(b)
III-11
Visual examination of the body
Mil. R. Evid. 312(b)(2)
III-10
Intrusions, body cavities
Mil. R. Evid. 312(c)
III-10
Inventories
Mil. R. Evid. 313(c)
III-12
Investigative detentions._ See_ ** Stops, investigative,**
this heading.
Jails, confinement facilities, searches within
Mil. R. Evid. 314(h)
III-14
Law enforcement officials, nonmilitary
Mil. R. Evid. 311(c)(2)
III-8
Magistrate, power to authorize searches
Mil. R. Evid. 315(d)(2)
III-15
Medical qualifications, persons searching or
seizing from body
Mil. R. Evid. 312(g)
III-11
Military judge, power to authorize searches
Mil. R. Evid. 315(d)(2)
III-15
Motion to suppress
_ See also_ **Motions.**
Generally
Mil. R. Evid. 311(a)(1); 311(d)
III-8; III-9
Testimony upon a preliminary matter
Mil. R. Evid. 311(f)
?????
Neutral and detached
Mil. R. Evid. 315(d)
III-15
Objections, evidence unlawfully seized
Mil. R. Evid. 311(a)(1)
III-8
Offer of proof, false statements
Mil. R. Evid. 311(g)(2)
?????
Open fields or woodlands, search of
Mil. R. Evid. 314(j)
III-14
Oral communications, interception of
Mil. R. Evid. 317
III-16
Plain view seizures
Mil. R. Evid. 316(d)(4)(C)
?????
Private dwelling, entry to apprehend
R.C.M. 302(e)(2)
II-18
Probable cause
Challenging the determination of
False statements
Mil. R. Evid. 311(g)(2)
?????
Generally
Mil. R. Evid. 311(g)(1)
?????
Searches not requiring
Mil. R. Evid. 314
III-12
Searches requiring
Mil. R. Evid. 315
III-14
To apprehend
R.C.M. 302(c)
II-18
To confine before trial
R.C.M. 305(d)
II-21
To restrain before trial
R.C.M. 304(c)
II-20
To search
Mil. R. Evid. 315(f)(2)
III-15
To seize
Mil. R. Evid. 316(b)
III-15
Search
Authorization
Mil. R. Evid. 315(b)(1)
III-14
Execution of
Mil. R. Evid. 315(h)
?????
Power to conduct
Mil. R. Evid. 315(e)
III-15
Probable cause not required
Mil. R. Evid. 314(a)
III-12
Probable cause required
Mil. R. Evid. 315(a)
III-14
Unlawful, defined
Mil. R. Evid. 311(c)
III-8
Warrant, defined
Mil. R. Evid. 315(b)(2)
III-14
_ See also_ Authorization to, this heading.
Seizure
Consent
Mil. R. Evid. 316(d)(2)
?????
Generally
Mil. R. Evid. 316
III-15
Plain view
Mil. R. Evid. 316(d)(4)(C)
?????
Power to seize
Mil. R. Evid. 316(e)
III-16
Probable cause to seize
Mil. R. Evid. 316(b)
III-15
Unlawful, defined
Mil. R. Evid. 311(c)
III-8
Standing to contest search or seizure
Mil. R. Evid. 311(a)(2)
III-8
Stops, investigative
Frisks subsequent to
Mil. R. Evid. 314(f)(2)
III-13
Generally
Mil. R. Evid. 314(f)(1)
III-13
Property detention
Mil. R. Evid. 316(d)(5)
?????
Search of vehicle subsequent to
Mil. R. Evid. 314(f)(3)
III-13
Treaty obligations, effect of
Mil. R. Evid. 315(c)(4)(B)
?????
Urine, seizure
Generally
Mil. R. Evid. 312(d)
III-11
Inspections
Mil. R. Evid. 313(b)
III-11
Vaginal search
Mil. R. Evid. 312(c)
III-10
Vehicles, search of
Upon probable cause
Mil. R. Evid. 315(g)(3)
?????
Upon reasonable suspicion of weapons
Mil. R. Evid. 314(f)(3)
III-13
Visual examination of the body
Mil. R. Evid. 312(b)
III-10
Voluntariness of consent
Mil. R. Evid. 314(e)(4)
III-13
Waiver
Conditional guilty pleas
R.C.M. 910(a)(2)
II-102
Failure to raise by timely motion
Mil. R. Evid. 311(d)(2)(A)
III-9
Guilty plea
Mil. R. Evid. 311(i)
?????
Warrant, search
Defined
Mil. R. Evid. 315(b)(2)
III-14
Required for entry to apprehend
R.C.M. 302(d)(2)
II-18
Wire and oral communications, interception
Mil. R. Evid. 317
III-16
Secretary, Service
Convening courts-martial
Art. 22; 23; 24; UCMJ
A2-7; ???
R.C.M. 504(b)(1); 504(b)(2);
1302(a)
???; II-49; ???
Powers and responsibilities concerning review of
courts-martial
R.C.M. 1206
II-178
Secret Information, privilege
Mil. R. Evid. 505
III-25
Security
Courtroom
R.C.M. 806(b)
II-81
National._ See_ National security.
Police._ See_ Law enforcement official.
Record of trial, classification
R.C.M. 1103(h)
II-145
Sedition
Generally
IV-26
Solicitation to commit
IV-7
Seizure of evidence
_ See also_ Search and seizure.
Destruction to prevent
IV-129
Generally
Mil. R. Evid. 316
III-15
Self-defense
Aggravated assault
R.C.M. 916(e)(1); 916(e)(2)
II-112
Defense of another
R.C.M. 916(e)(5)
II-113
Generally
R.C.M. 916(e)
II-112
Homicide
R.C.M. 916(e)(1)
II-112
Loss of right
R.C.M. 916(e)(4)
II-112
Other assaults
R.C.M. 916(e)(3)
II-112
Self-incrimination
Accused's failure to testify
Generally
Mil. R. Evid. 301(f)(1)
III-3
Instructions concerning
Mil. R. Evid. 301(g)
?????
Admissions._ See_ Confessions and admissions, this heading.
Advice to witnesses
Mil. R. Evid. 301(b)(2)
?????
Applicability of privilege against
Mil. R. Evid. 301(a)
III-3
Burden of proof
Mil. R. Evid. 304(e)
III-5
Confessions and admissions
Admissibility
Mil. R. Evid. 304(a)
III-4
Admission defined
Mil. R. Evid. 304(c)(2)
III-5
Admissions by silence or failure to deny accusations of
wrongdoing
Mil. R. Evid. 304(h)(3)
?????
Admissions made during plea or plea discussion
Mil. R. Evid. 410
III-20
Burden of proof for admissibility
Mil. R. Evid. 304(e)
III-5
Coercion, effect of
Mil. R. Evid. 304(c)(3)
III-5
Confession defined
Mil. R. Evid. 304(c)(1)
III-5
Corroboration required
Mil. R. Evid. 304(g)
III-6
Joint trial, effect on co-accused
Mil. R. Evid. 306
III-8
Oral confessions and admissions
Mil. R. Evid. 304(h)(1)
?????
Standing to challenge
Mil. R. Evid. 304(a)
III-4
Use of admissions made at conferences
R.C.M. 802(e)
II-78
Corroboration of confessions
Mil. R. Evid. 304(g)
III-6
Counsel rights and warnings
Effect of request for counsel
Mil. R. Evid. 305(f)
III-8
Notice to counsel
Mil. R. Evid. 305(e)
III-7
Right to counsel
Mil. R. Evid. 305(d)(2)
?????
Waiver of counsel rights
Mil. R. Evid. 305(g)(2)
?????
When counsel rights warnings are required
Mil. R. Evid. 305(d)(1)
?????
Degrading questions
Mil. R. Evid. 303
III-4
Derivative evidence
Mil. R. Evid. 304(e)(3)
?????
Disclosure by prosecution
Accused's statements
Mil. R. Evid. 304(d)(1)
?????
Immunity or leniency to a prosecution witness
Mil. R. Evid. 301(c)(2)
?????
Effect of claiming privilege against
Mil. R. Evid. 301(f)
III-3
Exclusionary rules
Mil. R. Evid. 304(a); 305(a)
III-4; III-6
Exception for impeachment
Mil. R. Evid. 304(b)
III-5
Exercise of privilege against
Mil. R. Evid. 301(c)
III-3
Guilty plea
Conditional, to preserve motions
R.C.M. 910(a)(2)
II-102
Waiver by
Mil. R. Evid. 311(i)
?????
Immunity
_ See also_ **Immunity.**
Effect of grant
Mil. R. Evid. 301(c)(1)
?????
Notice to accused
Mil. R. Evid. 301(c)(2)
?????
Impeachment by contradiction, using involuntary statements
Mil. R. Evid. 304(b)
III-5
Inadmissibility of accused's pretrial claim of
privilege against
Mil. R. Evid. 301(f)(3)
III-4
Interrogation
By foreign officials
Mil. R. Evid. 305(h)(2)
?????
By nonmilitary officials
Mil. R. Evid. 305(h)(1)
?????
Custodial
Mil. R. Evid. 305(d)(1)
?????
Defined
Mil. R. Evid. 305(b)(2)
III-6
Notice to counsel
Mil. R. Evid. 305(e)
III-7
Persons subject to UCMJ, defined
Mil. R. Evid. 305(b)(1)
III-6
Involuntary statements
Burden of proof concerning
Mil. R. Evid. 304(e)
III-5
Defined
Mil. R. Evid. 304(c)(3); 305(a)
III-5; III-6
Use of certain involuntary statements to impeach
Mil. R. Evid. 304(b)
III-5
Mental examination of accused, privilege concerning
Exceptions
Mil. R. Evid. 302(b)
III-4
Generally
Mil. R. Evid. 302(a)
III-4
Noncompliance by accused
Mil. R. Evid. 302(d)
III-4
Procedure for claiming
Mil. R. Evid. 302(e)
III-4
Psychotherapist-patient privilege
Mil. R. Evid. 513
III-37
Release of evidence
Mil. R. Evid. 302(c)
III-4
Motion to suppress
See also**Motions.**
Effect of guilty plea
Mil. R. Evid. 304(d)(5)
?????
Generally
Mil. R. Evid. 304(d)(2)
?????
Rulings by military judge
Mil. R. Evid. 304(d)(4)
?????
Specificity required
Mil. R. Evid. 304(d)(3)
?????
Testimony upon a preliminary matter
Mil. R. Evid. 304(f)
III-5
Notice to accused of leniency or immunity given a
prosecution witness
Mil. R. Evid. 301(c)(2)
?????
Notice to counsel of intended interrogation
Mil. R. Evid. 305(e)
III-7
Rights warnings
Article 31, UCMJ
Mil. R. Evid. 305(c)
III-7
Counsel warnings
Mil. R. Evid. 305(d)
III-7
Effect of failure to warn
Mil. R. Evid. 305(a)
III-6
Standing to assert privilege against
Mil. R. Evid. 301(b)(1)
?????
Statements of co-accused
Mil. R. Evid. 306
III-8
Striking testimony after assertion of privilege against
Mil. R. Evid. 301(f)(2)
III-4
Testimony by accused on preliminary matter
Mil. R. Evid. 304(f)
III-5
Voluntariness
Mil. R. Evid. 304(c)(3)
III-5
Waiver of privilege against
By accused
Mil. R. Evid. 301(e)
III-3
By witness
Mil. R. Evid. 301(d)
III-3
Waiver of rights
Conditional guilty plea
R.C.M. 910(a)(2)
II-102
Failure to move to suppress
Mil. R. Evid. 304(d)(2)(A)
?????
Generally
Mil. R. Evid. 305(g)
?????
Guilty plea, effect of
Mil. R. Evid. 304(d)(5)
?????
Self-injury, infliction of
IV-60
Without intent to avoid service
IV-129
Selling military property, unlawfully
IV-47
Semen
Extraction of
Mil. R. Evid. 312(d); 406
III-11; III-19
Source of
Mil. R. Evid. 412(b)(1)(A)
III-21
Sentence
_ See also_ specific topics.
Announcement of
Findings, effect on reconsideration of
R.C.M. 924(a); 924(c)
II-121; II-122
Generally
R.C.M. 1007
II-136
Authorized punishments
R.C.M. 1003(b)
II-127
Capital cases
R.C.M. 1004
II-131
Confinement, credit for illegal pretrial
R.C.M. 305(j)(2); 305(k)
II-24
Contempt, sentence for
R.C.M. 809(c)
II-84
Convening authority's action on
Generally
R.C.M. 1107(d)
II-156
Modification of initial action
R.C.M. 1107(f)(2)
II-158
Summary court-martial
R.C.M. 1306(b)
II-186
Deliberations
R.C.M. 1006
II-135
Determination of
R.C.M. 1002
II-126
Execution
R.C.M. 1113
II-167
Forms of
Appendix 11
A11-1
Impeachment of
R.C.M. 1008
II-137
Instructions on
R.C.M. 1005
II-134
Maximum limitations
Chart of maximum punishments
Appendix 12
A12-1
Circumstances affecting increase
R.C.M. 1003(d)
II-131
General court-martial
R.C.M. 201(f)(1)
II-11
Generally
R.C.M. 1003
II-127
New trial
R.C.M. 810(d)
II-86
Other trial
R.C.M. 810(d)
II-86
Rehearing
R.C.M. 810(d)
II-86
Special court-martial
R.C.M. 201(f)(2)(B)
II-12
Summary court-martial
R.C.M. 1301(d)
II-182
Multiplicity
R.C.M. 1003(c)(1)(C)
II-129
Procedure
R.C.M. 1009
II-137
Reassessment of
R.C.M. 1107(e)(1)(B)(iv)
II-157
Reconsideration of
R.C.M. 1009
II-137
Unexecuted portion
R.C.M. 1108(b)
II-160
Voting
R.C.M. 1006(d)
II-136
Sentence proceedings. _ See_ ** Presentencing procedure.**
Sentinel or lookout
Assault on
IV-104
Misbehavior as
IV-57
Offenses against or by
IV-130
Separation
_ See also_ Bad conduct-discharge; Dishonorable discharge; Dismissal.
Fraudulent
IV-8
Unlawful, effecting
IV-9
Serious offense, misprision of
IV-123
Service
Charges, of
R.C.M. 602
II-54
Record of trial, of
R.C.M. 1104(b)
II-148
Subpoena, of
R.C.M. 703(e)(2)(D); 703(e)(2)(E)
II-65; II-66
Written motion, of
R.C.M. 905(i)
II-95
Services, obtaining under false pretenses
IV-116
Sessions
Article 39(a)
R.C.M. 803
II-78
Closed
Closure
R.C.M. 806(b)(2)
II-82
Deliberations and vote, findings
R.C.M. 921(a)
II-119
Deliberations and vote, sentence
R.C.M. 1006(a)
II-135
Objections to rulings of president
R.C.M. 801(e)(3)(C)
II-76
Control of spectators
R.C.M. 806(b)(1)
II-81
Opening
R.C.M. 901
II-89
Post-trial
R.C.M. 1102
II-141
Setting aside nonjudicial punishment
V. Para. 6d
V-8
Severance
Charges, of
Appeal of United States, effect of
R.C.M. 908(b)(4)
II-99
Motion for
R.C.M. 905(b)(5); 906(b)(10)
II-93; II-97
Co-accused, of
R.C.M. 905(b)(5); 906(b)(9)
II-93; II-96
Sexual offense
Evidence of character of victim
Mil. R. Evid. 412
III-20
Evidence of similar crimes
Mil. R. Evid. 413; 414
III-21; III-22
Ship. _ See_ Carrier.
Ship. _ See_ Vessel.
Shore patrol. _ See_ Law enforcement official.
Signing false official document or statement
IV-46
Signing receipt without knowledge of facts
IV-96
Sitting on post, sentinel or lookout
IV-130
Sleeping on post, sentinel or lookout
IV-57
Sodomy
Assault with intent to commit
IV-104
Generally
IV-85
Murder while committing
IV-62
Solicitation
Attempt distinguished
IV-5
Desertion
IV-7
Misbehavior before the enemy
IV-7
Mutiny
IV-7
Other offenses
IV-131
Pandering distinguished
IV-8
Sedition
IV-7
Special court-martial
_ See also_ Specific topics.
Composition
R.C.M. 501(a)(2)
II-43
Counsel
Detail to
R.C.M. 501(b)
II-43
Generally
R.C.M. 502(d)
II-44
Required to adjudge bad-conduct discharge
R.C.M. 201(f)(2)(B)(ii)(a)
?????
Jurisdiction
R.C.M. 201(f)(2)
II-12
Personnel of
R.C.M. 501
II-43
President of, without military judge
Defined
R.C.M. 103(15)
II-2
Duties
R.C.M. 502(b)(2)
II-44
Procedural guide
Appendix 8
A8-1
Record of trial
R.C.M. 1103(c)
II-144
Referral of charges
R.C.M. 404(d); 601
II-33; II-53
Special defenses. _ See_ ** Defenses.**
Special findings
In conjunction with general findings
R.C.M. 918(b)
II-117
Requirement for essential findings of fact in ruling on
Motions, generally
R.C.M. 905(d)
II-93
Motions to suppress
Confessions and admissions
Mil. R. Evid. 304(d)(4)
?????
Evidence of eyewitness identification
Mil. R. Evid. 321(f)
?????
Product of search and seizure
Mil. R. Evid. 311(d)(4)
III-9
Specifications. _ See_ ** Charges and specifications.**
Spectators
Access to court-martial
R.C.M. 806(a)
II-81
Control of
R.C.M. 806(b)
II-81
Witnesses as
Mil. R. Evid. 615
III-43
Speech, provoking
IV-61
Speedy trial
Accountability
Inception of time period
R.C.M. 707(b)(1)
II-73
Termination of time period
R.C.M. 707(b)(1)
II-73
Arrest
Effect of
R.C.M. 707(a)(2)
II-73
Release from
R.C.M. 707(b)(3)(B)
II-73
Confinement, pretrial
Effect of
R.C.M. 707(a)(2)
II-73
Release from
R.C.M. 707(b)(3)(B)
II-73
Dismissal of charges
Effect of
R.C.M. 707(b)(3)(A)
II-73
Motion for
R.C.M. 905(c)(2)(B); 907(b)(2)(B)
II-93; II-98
Remedy for violation
R.C.M. 707(d)
II-74
Excluded periods
R.C.M. 707(c)
II-73
Generally
R.C.M. 707
II-72
Imposition of restraint, effect of
R.C.M. 707(a)(2)
II-73
Mistrial, effect of
R.C.M. 707(b)(3)(A)
II-73
Motion concerning
Burden of proof
R.C.M. 905(c)(2)(B)
II-93
Grounds
R.C.M. 907(b)(2)(B)
II-98
Multiple charges, effect of
R.C.M. 707(b)(2)
II-73
Preferral of charges, effect of
R.C.M. 707(b)(2)
II-73
Pretrial agreement, waiver of right not permitted
R.C.M. 705(c)(1)(B)
II-70
Remedy for denial of
R.C.M. 707(d)
II-74
Time periods
R.C.M. 707(a); 707(d)
II-72; II-74
Spies. _ See_ Spying.
Spontaneous exclamation
Mil. R. Evid. 803(2)
III-44
Spouses, privilege as to
Mil. R. Evid. 504
III-24
Spying
Generally
IV-43
Votes required to convict
R.C.M. 921(c)(2)(A)
II-120
Staff judge advocate
_ See also_ Advice, pretrial.
Charges and specifications, amendment by
R.C.M. 603(b)
II-55
Communications with
Convening authority
R.C.M. 105(a)
II-5
Judge Advocate General, The
R.C.M. 105(b)
II-5
Staff judge advocates
R.C.M. 105(b)
II-5
Defined
R.C.M. 103(17)
II-2
Execution of sentence, advice on
R.C.M. 1113(c)(1)
II-168
Member, ineligible to serve as
R.C.M. 912(f)(1)(G); 912(f)(1)(H)
II-106
Military judge, disqualified after acting as
R.C.M. 902(b)(2)
II-90
Pretrial agreement, negotiations
R.C.M. 705(d)(1)
II-70
Recommendations, post-trial
Disqualification
R.C.M. 1106(b)
II-152
Form and content
R.C.M. 1106(d)
II-152
Generally
R.C.M. 1106
II-152
No findings of guilty
R.C.M. 1106(e)
II-153
Not guilty, lack of mental responsibility
R.C.M. 1106(e)
II-153
Service on defense counsel
R.C.M. 1106(f)
II-153
Stalking
IV-68
Standing. _ See_ ** Search and seizure; Self-incrimination.**
State law
Judicial notice of
Mil. R. Evid. 201A
?????
Offenses under
IV-102
Statements
Accused in presentencing proceedings
R.C.M. 1001(c)(2)
II-125
Closing, by counsel
R.C.M. 919
II-117
Coercion of
Mil. R. Evid. 304(c)(3)
III-5
Disclosure by trial counsel
R.C.M. 701(a)(1)(C)
II-57
Disloyal
IV-113
False
IV-46; IV-94
Hearsay. See Evidence, Hearsay.
Inconsistent, for impeachment
Mil. R. Evid. 613
III-42
Investigation, pretrial, use in
R.C.M. 405(g)(4)
II-37
Limited admissibility
Mil. R. Evid. 105
III-2
Opening, by counsel
R.C.M. 913(b)
II-108
Production, after testimony
R.C.M. 914
II-109
Unsworn, by accused
R.C.M. 1001(c)(2)(C)
II-125
State records, authentication of
Mil. R. Evid. 901; 902
III-48; III-49
Statutes, judicial notice of
Mil. R. Evid. 201A
?????
Statutes of limitations (Art. 43, UCMJ)
Motion to dismiss
Burden of proof
R.C.M. 905(c)(2)(B)
II-93
Generally
R.C.M. 907(a)
II-97
Tolling
R.C.M. 403(a)
II-32
Statutory rape (Art. 120(b), UCMJ)
IV-68
Steal. See Larceny.
Stipulations
Confessional
R.C.M. 705(b)(1)
II-69
Effect
R.C.M. 811(e)
II-87
Generally
R.C.M. 811
II-86
Investigation, pretrial, use at
R.C.M. 405(g)(4)(A)(v)
II-37
Kinds
R.C.M. 811(a)
II-86
Military judge
Authority to reject
R.C.M. 811(b)
II-86
Inquiry
R.C.M. 811(c)
II-87
Military Rules of Evidence, applicability
R.C.M. 811(e)
II-87
Pretrial agreement, term or condition of
R.C.M. 705(c)(2)
II-70
Procedure
R.C.M. 811(f)
II-87
Withdrawal from
R.C.M. 811(d)
II-87
Stolen property, receiving, buying, concealing
IV-131
Straggling
IV-132
Striking
See also Assault.
Colors or flag (Art. 100, UCMJ)
IV-36
Commissioned officer (Art. 90, UCMJ)
IV-19
Noncommissioned, petty, or warrant officer (Art.91,UCMJ)
IV-21
** sua sponte,** defined
R.C.M. 103(18)
II-2
Subordinate compelling surrender (Art. 100, UCMJ)
IV-36
Subpoena (Art. 46 and 47, UCMJ)
Evidence
R.C.M. 703(f)(4)(B)
II-67
Form
Appendix 7
A7-1
Generally
R.C.M. 703
II-63
Right to
R.C.M. 703(a)
II-63
Witnesses
R.C.M. 703(e)(2)
II-65
Successor in command, included in "convening
authority"
R.C.M. 103(6)
II-1
Summary court-martial (Art. 17, UCMJ)
Applicability of Military Rules of Evidence
R.C.M. 1304(b)(2)(E)
II-185
Composition
R.C.M. 1301(a)
II-182
Convening
By accuser
R.C.M. 1302(b)
II-183
Procedure
R.C.M. 1302(c)
II-183
Who may convene
R.C.M. 1302(a)
II-183
Convening authority's action
R.C.M. 1306(b)
II-186
Counsel, right to
R.C.M. 1301(e)
II-182
Evidence, production of
R.C.M. 1301(f)
II-183
Function
R.C.M. 1301(b)
II-182
Generally
Chapter XIII
?????
Jurisdiction over persons and offenses
R.C.M. 1301(c)
II-182
Military judge, included in definition of
R.C.M. 103(15)
II-2
Noncapital offenses
R.C.M. 1301(c)
II-182
Objection to trial by
R.C.M. 1303
II-183
Procedural guide
Appendix 9
A9-1
Procedure
Post-trial
R.C.M. 1306
II-186
Pretrial
R.C.M. 1304(a)
II-183
Trial
R.C.M. 1304(b)
II-184
Punishments
R.C.M. 1301(d)
II-182
Record of trial
Authentication
R.C.M. 1305(c)
II-186
Format
Appendix 15
A15-1
Forwarding copies
R.C.M. 1305(d)
II-186
Preparation
R.C.M. 1103(d); 1305
II-144; II-185
Review by summary court-martial
R.C.M. 1103(i)(2); 1305(a)
II-146; II-185
Referral of charges to
R.C.M. 403(b)(4); 601(d)(1)
II-33; II-53
Basis
R.C.M. 601(d)(1)
II-53
By general court-martial convening authority
R.C.M. 407(a)(4)
II-41
By special court-martial convening authority
R.C.M. 404(d)
II-33
By summary court-martial convening authority
R.C.M. 403(b)(4)
II-33
Review
By a judge advocate
R.C.M. 1306(c)
II-186
By The Judge Advocate General
R.C.M. 1306(d)
II-187
Subpoena, authority to issue
R.C.M. 703(e)(2)(C); 1301(f)
II-65; II-183
Vacation of suspended sentence
R.C.M. 1109(e)
II-163
Witnesses, production
R.C.M. 1301(f)
II-183
Supreme Court, Appeal of courts-martial (Art.67(h), UCMJ)
R.C.M. 1205
II-178
Surrender
Shameful (Art. 99, UCMJ)
IV-33
Subordinate compelling (Art. 100, UCMJ)
IV-36
Suspension of military judge, counsel
R.C.M. 109
II-6
Suspension of nonjudicial punishment
V. Para. 6a
V-7
Suspension of sentence
Conditions of suspension
R.C.M. 1108(c)
II-160
Generally
R.C.M. 1108
II-160
Limitations
R.C.M. 1108(d)
II-161
Termination by remission
R.C.M. 1108(e)
II-161
Vacation of suspension
Confinement pending
R.C.M. 1109(c)
II-161
Generally
R.C.M. 1109
II-161
Procedure
R.C.M. 1109(d); 1109(e)
II-162; II-163
Report of proceedings
Appendix 18
A18-1
Time for
R.C.M. 1109(b)
II-161
Who may suspend
R.C.M. 1108(b)
II-160
Swearing
See also Oaths.
False
IV-116
Taking, wrongful
IV-74
_ See also_ Larceny.
Telephone, tapping
Mil. R. Evid. 317
III-16
Television
Broadcasting from courtroom
R.C.M. 806(c)
II-82
Remote live testimony of a child
R.C.M. 804; 914A
Mil. R. Evid. 611(d)
II-82; II-110
Testify
Accused, failure to
Mil. R. Evid. 301(f)(1); 301(g)
III-4; ???
Wrongful refusal
IV-132
Testimony
Expert._ See_ Evidence, Expert.
False
IV-94
_ See also_ **Perjury.**
How taken in court-martial
R.C.M. 913(c)(2)
II-108
Interpreter, given through
Mil. R. Evid. 604
III-39
Investigation, pretrial, alternatives
R.C.M. 405(g)(4)
II-37
Offer of proof
Mil. R. Evid. 103(a)(2)
III-1
Prior proceeding, admissibility
Court-martial, at
Mil. R. Evid. 804(b)(1)
III-47
Investigation, pretrial at
R.C.M. 405(g)(4)(A)(iii);
R.C.M. 405(g)(4)(B)(iii)
II-37; ???
Privileged,_ See_ Evidence, Privileges.
Remote live testimony of a child
R.C.M. 804; R.C.M. 914A; Mil. R. Evid. 611(d)
II-83; ???; III-41
Spouse of accused
Mil. R. Evid. 504
III-24
Stipulation of expected
R.C.M. 811
II-86
Theft. _ See_ Larceny.
Threat
_ See also_ Extortion
To cause panic or public fear
IV-133
Communicating
IV-134
Time of war. _ See_ War.
Travel order, form
Appendix 7
A7-1
Treaties, judicial notice of
Mil. R. Evid. 201A
?????
Trial counsel
_ See also_ Counsel.
Absence of
R.C.M. 805(c)
II-80
Announcement of
R.C.M. 813(a)(6); 901(b)
II-88; II-89
Assistant
Detailing
R.C.M. 501(b); 502(d)(2); 503(c)
II-43; II-44; II-48
Duties
R.C.M. 502(d)(5)
II-45
Oath
R.C.M. 807(b)(1)
II-83
Qualifications
R.C.M. 502(d)(2)
II-44
Challenges against members, announcing grounds
R.C.M. 912(c)
II-105
Changes
R.C.M. 505(d)(1)
II-51
Charges and specifications
Authority to change
R.C.M. 603
II-55
Service
R.C.M. 602
II-54
Deposition, attached for
R.C.M. 702(d)(2)
II-61
Detailing
R.C.M. 503(c)
II-48
Disclosure to defense._ See_ ** Disclosure and discovery.**
Disqualification of
R.C.M. 502(d)(4); 502(f); 901(d)(3)
II-45; II-47; II-89
Disqualified to act as other court-martial personnel
R.C.M. 502(e)(2)(D)
II-47
Duties
R.C.M. 502(d)(5)
II-45
Evidence, production of
R.C.M. 703(f)
II-67
Mental examination of accused, disclosure of results to
R.C.M. 706(c)(3); 706(c)(5)
II-72
Oath
Generally
R.C.M. 807(b)(1)
II-83
Unsworn previously
R.C.M. 901(d)(5)
II-90
Opening statement
R.C.M. 913(b)
II-108
Presence at court-martial
R.C.M. 803; 805
II-78; II-80
Qualifications
Announcement of
R.C.M. 901(d)(1)
II-89
General court-martial
R.C.M. 502(d)(1)
II-44
Special court-martial
R.C.M. 502(d)(2)
II-44
Record of trial
Examination
R.C.M. 1103(i)(1)
II-145
Responsibility
R.C.M. 808; 1103(b)(1); 1103(c)
II-84; II-144
Service
R.C.M. 1104(b)
II-148
Result of trial, report
R.C.M. 1101(a)
II-139
Service of charges
R.C.M. 602
II-54
Witnesses, production of
R.C.M. 703(c); 703(d); 703(e)
II-64
Unauthorized absence
IV-13
_ See also_ Desertion.
**Unauthorized insignia, badge, ribbon, device, or lapel button,
wearing of**
IV-135
Unauthorized pass
IV-115
Uncharged misconduct
Action with presented to court-martial
R.C.M. 801(d)
II-75
Evidence, when admissible
Mil. R. Evid. 404(b); 608(b)
III-19; III-40
Instruction on
Mil. R. Evid. 105
III-2
Uniform
For courts-martial
Accused, responsibility for
R.C.M. 804(d)(1)
II-80
Military judge, determination
R.C.M. 801(a)(1)
II-75
Wearing unauthorized insignia, badge, ribbon, device,
or lapel button
IV-135
Uniform Code of Military Justice (UCMJ)
Appendix 2
A2-1
Failure to enforce or comply with
IV-32
Unit, separate or detached, defined
R.C.M. 504(b)(2)(A)
II-49
Unlawful apprehension
IV-32
Unlawful detention
IV-32
Unlawful enlistment, appointment, separation
IV-8; IV-9
Unlawful entry
IV-134
Unsworn charges
Amendment resulting in
R.C.M. 603(d)
II-55
Preferral
R.C.M. 307(b)
II-27
Unsworn statement
Accused
Investigation, pretrial, right to make
R.C.M. 405(f)(12)
II-35
Presentencing proceeding, right to make
R.C.M. 1001(c)(2)(C)
II-125
Investigation, pretrial, objection to use at
R.C.M. 405(g)(4)(A)(vi)
II-37
Use, wrongful, of controlled substance
IV-54
Uttering forged instrument
IV-79
Uttering worthless check
IV-81
Vacation of suspended punishment
Confinement, pending
R.C.M. 1109(c)
II-161
General court-martial sentence
R.C.M. 1109(d)
II-162
Generally
R.C.M. 1109
II-161
Nonjudicial punishment
V. Para. 6a(4); 6a(5)
V-7
Report of proceedings
Appendix 18
A18-1
Special court-martial, bad-conduct discharge
R.C.M. 1109(f)
II-163
Special court-martial sentence, no bad-conduct discharge
R.C.M. 1109(e)
II-163
Summary court-martial
R.C.M. 1109(g)
II-164
Value, discussed under larceny
IV-76
Vehicle
Defined
R.C.M. 103
II-1
Driving recklessly or while drunk
IV-51
Venue. _ See_ Place of court-martial.
Veracity, impeachment of witnesses._ See_ Evidence,
Impeachment.
Verbatim record
R.C.M. 1103(b)(2)(B); 1103(c)(1)
II-143; II-144
Verdict. _ See_ Findings.
Vessel
Hazarding
IV-50
Jumping from
IV-121
Videotaped record of trial
R.C.M. 1103(j)
II-146
Views and inspections, by court-martial
R.C.M. 913(c)(3)
II-108
Violence, offering to superior commissioned officer
IV-19
Voir dire
_ See also_ Challenges.
Members
R.C.M. 912(d)
II-105
Military judge
R.C.M. 902(d)(2)
II-91
Use of questionnaire
R.C.M. 912(a)(1)
II-104
Voluntary manslaughter
IV-64
Voting. _ See_ Deliberations and voting.
Waiver
Appellate review
R.C.M. 1110
II-164
Form for waiver
Appendix 19
A19-1
Argument, objections to
R.C.M. 919(c)
II-118
By pretrial agreement
R.C.M. 705(c)(2)(E)
II-70
Challenges
Cause
R.C.M. 912(f)(4)
II-106
Peremptory
R.C.M. 912(g)(2)
II-107
Selection of members
R.C.M. 912(b)(3)
II-105
Conditional guilty plea, effect on
R.C.M. 910(a)(2)
II-102
Deposition
Objections in
R.C.M. 702(h)
II-62
Request for
R.C.M. 702(c)(3)(D)
II-61
Enlisted members, request for
R.C.M. 903(e)
II-92
Evidence, admissibility and objections
Mil. R. Evid. 103
III-1
Guilty plea, effect of
R.C.M. 910(c)(4); 910(j)
II-102; II-104
Instructions, objection to
R.C.M. 920(f); 1005(f)
II-119; II-135
Military judge alone, request for trial by
R.C.M. 903(e)
II-92
Motions, generally
R.C.M. 905(e); 907(b)(2)
II-94; II-98
Objections, generally
R.C.M. 801(g); Mil. R. Evid. 103
II-77; III-1
Recommendation of staff judge advocate, defect in,
objections to
R.C.M. 1106(f)(6)
II-154
Self-incrimination
Accused
Mil. R. Evid. 301(e)
III-3
Witness
Mil. R. Evid. 301(d)
III-3
War
Judicial notice of
Mil. R. Evid. 201
III-2
Law of._ See_ Law of War.
Prosecution of, case affecting
R.C.M. 401(d); 407(b)
II-32; II-41
Time of
Defined
R.C.M. 103(19)
II-2
Element of offense
IV-38; IV-42; IV-43
Maximum punishment
IV-7; IV-10; IV-19; IV-58; IV-60
Warrant of attachment
R.C.M. 703(e)(2)(G)
II-1
Warrant officer
Apprehension by
R.C.M. 302(b)(2)
II-18
Assault on
In execution of office
IV-21
Not in execution of office
IV-87
Dishonorable discharge
R.C.M. 1003(b)(8)(B)
II-128
Dismissal of commissioned
R.C.M. 1003(b)(8)(A)
II-128
Disobedience of
IV-21
Disrespect toward
IV-21
Member of court-martial
R.C.M. 502(a)(1)(B)
II-43
Restraint of, pretrial
R.C.M. 304(b)(1)
II-20
Warrant, search. _ See_ ** Search and seizure.**
Waste or spoilage, nonmilitary property
IV-49
Weapon
_ See also_ Assault; Firearm.
Carrying concealed
IV-135
**Wearing unauthorized insignia, decoration, badge, ribbon,
device or lapel button**
IV-135
Wife, Husband, privileged communication
Mil. R. Evid. 504
III-24
Willful disobedience of orders
IV-19; IV-21
Wiretapping, evidence
Mil. R. Evid. 317
III-16
Withdrawal
Appellate review waiver, of
R.C.M. 1110
II-164
Charges, of
Authority to
R.C.M. 604(a)
II-55
Effect of
R.C.M. 604(b)
II-56
Generally
R.C.M. 604
II-55
Mistrial
R.C.M. 915(c)(1)
II-111
Pretrial agreement, term of
R.C.M. 705(b)(2)(C)
II-69
From conspiracy
IV-6
From offense, as principal
IV-2
From pretrial agreement
R.C.M. 705(b)
II-69
Guilty plea, of
R.C.M. 910(h)(1)
II-104
Witness
Access to, by parties
R.C.M. 701(e)
II-59
Appear, neglect or refusal to
R.C.M. 703(e)(2)(G)
II-66
Children
R.C.M. 804; 914A
Mil. R. Evid. 611(d)
II-84; II-111
Competency
Mil. R. Evid. 601
III-39
Discovery._ See_ Disclosure and discovery.
Examination._ See_ Questions; Testimony.
Expert, employment of
R.C.M. 703(d)
II-64
Failure to call
R.C.M. 701(c)
II-59
Immunity._ See_ Immunity.
Impeachment._ See_ Evidence, Impeachment.
Members, disqualified as
R.C.M. 912(f)(1)(D)
II-106
Military judge, disqualified as
R.C.M. 902(b)(3)
II-90
Oath
R.C.M. 807(b)
II-83
Perjury
IV-94
Presence
R.C.M. 703(b)(1)
II-63
Pretrial agreement concerning
R.C.M. 705(c)(2)(B); 705(c)(2)(E)
II-70
Privileges._ See_ Evidence, Privileges.
Production of
Determination
R.C.M. 703(c)
II-64
Generally
R.C.M. 703
II-63
Motion for
R.C.M. 905(b)(4); 906(b)(7)
II-93; II-96
Pretrial investigation
R.C.M. 405(g)
II-35
Procedure for
R.C.M. 703(e); Appendix 7
II-64; A7-1
Rights of parties, court-martial
R.C.M. 703(b)
II-63
Sentencing
R.C.M. 1001(e)
II-126
Subpoena
R.C.M. 703(e)(2); Appendix 7
II-65; A7-1
Trial counsel, responsibility
R.C.M. 703(c)(1); 703(c)(2)(D)
II-64
Statements of, production
R.C.M. 914
II-109
Unavailable
Court-martial
R.C.M. 703(b)(3)
II-63
Pretrial investigation
R.C.M. 405(g)(1)
II-35
Worthless checks. _ See_ ** Checks.**
Writings
Authentication of
Mil. R. Evid. 901; 902
III-48; III-49
Best evidence rule._ See_ ** Evidence,** Contents of writings,
recordings, and photographs.
Used to refresh memory
Mil. R. Evid. 612
III-42
Wrongful appropriation
IV-74
Wrongful cohabitation
IV-111